Chang-Hooker v Rooke

[2012] NZHC 2229

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-002106 [2012] NZHC 2229

UNDER  the Insolvency Act 2006

IN THE MATTER OF     the bankruptcy of Sandy Yinong Chang- Hooker

BETWEEN  SANDY YINONG CHANG-HOOKER Applicant/Judgment Debtor

ANDDAVID JOHN ROOKE Respondent/Judgment Creditor

Hearing:         29 August 2012

Appearances: S Chang-Hooker in person, the Judgment Debtor

D Wu for the Judgment Creditor

Judgment:      29 August 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors:

D Wu, David Rooke Law, Manukau – [email protected]

Copy to:

S Chang-Hooker – [email protected]

SANDY YINONG CHANG-HOOKER V DAVID JOHN ROOKE HC AK CIV 2012-404-002106 [29 August

2012]

[1]      The issue for determination is whether the applicant ought to pay costs in the outcome of her application to set aside Mr Rooke’s bankruptcy notice.

[2]      The matter was called before me in the chambers list on 29 August 2012.  At that time I heard from counsel for the respondent and as well from the applicant. The applicant also provided me with a copy of a memorandum that she had prepared.

[3]      At the conclusion of the hearing I informed the applicant of the reasons why there would be an award of costs made against her in the sum of $1,638.50 inclusive of disbursements in relation to her application to set aside the bankruptcy notice.

Background

[4]      On 14 November 2011 the applicant filed an application to the High Court seeking leave to appeal out of time in relation to a judgment made against her in favour of Mr Rooke.  That application was heard on 13 March 2012 before Brewer J but the applicant did not appear.  In the outcome her application for leave to appeal was dismissed and she was ordered to pay Mr Rooke costs in the sum of $2,490.50.

[5]      On 9 May 2012 the applicant was served with a bankruptcy notice requiring payment from her of the said sum of $2,490.50, together with a sum of $526.00 for the issue and service of the bankruptcy notice.

[6]      On 23 May 2012 the applicant filed an application to set aside the bankruptcy notice, and also seeking a stay on the execution on the judgment and in relation to the costs awarded on 13 March 2012, pending an appeal.

[7]      In support of those applications the applicant filed a lengthy affidavit of hers. In it she complains she was not aware that the 13 March 2012 order for costs had been sealed.  She wonders whether there was some complicity between a court staff member and Mr Rooke that accounted for this.   She believed Mr Rooke had an obligation to send her a copy of the sealed order before issuing any bankruptcy notice.

[8]      The applicant complains that Mr Rooke had a number of opportunities to provide advice regarding his having sealed the judgment order.   She says she had filed an appeal against the judgment.  She thinks the costs awarded were excessive. She believes Mr Rooke has breached an undertaking given to the Court that he would not seek to enforce existing orders in his favour.  It appears in this regard that the applicant is referring to Court events preceding 13 March 2012 including when Mr Rooke obtained a judgment against her on 27 November 2010 for $22,512.71 for unpaid legal costs.

[9]      Mr Rooke filed a notice of opposition to the setting aside application and as well has filed a comprehensive affidavit.

[10]     It is not clear from the Court’s file when the setting aside application was first called.

[11]     The Court record notes that when the applicant and Mr Rooke appeared before Associate Judge Sargisson in relation to the matter, the following note was made:

The debt has been paid.  The bankruptcy notice is set aside accordingly.  The applicant challenges the costs sought of $526.00.   There is nothing objectionable about those costs and I make an order that they be paid.  It is not possible to resolve further issues of costs today and the parties should take time to reflect on their respective positions.

[12]     The issue of costs has not since been resolved by agreement.

[13]     On 14 June 2012 Goddard J heard argument upon the applicant’s application to set aside the judgment of Brewer J issued on 13 March 2012.   By a judgment dated 18 July 2012 that application concerning the 13 March 2012 judgment, was dismissed.

[14]     The applicant’s response was to file a memorandum to this Court suggesting that it was not clear from the judgment of Goddard J that her decision related to the judgment of Brewer J dated 13 March 2012.  She noted that in paragraph 27 of that judgment Goddard J recorded: “the application to set aside judgment of Brewer J dated  30  March  2012  is  dismissed”.    The  reference  to  30  March  2012  is  a

typographical error and plainly so for the judgment specifically refers to the details of Brewer J’s judgment concerning the parties’ issues.  Also the first paragraph of Goddard J’s judgment noted:

This is an application by Ms Chang-Hooker to set aside the judgment of

Brewer J issued on 13 March 2012...

[15]     In argument before me this morning the applicant’s written submission notes:

4.Goddard J seemed referring Brewer J’s decision on another date instead of 13 March 2012.   Currently there was no clear decision from my application of setting aside judgment Brewer 13 March

2012.

5.        Therefore  my  application  of  setting  aside  judgment  Brewer  13

March 2012 has not been dismissed as Mr Rooke suggested.

6.        However Goddard J commented in her judgment:

[2]       It  is  important  to  note  that  there  is  no  evidence  of  any challenge to those fees ever having been mounted with the Law Society and no cost provision appears to have been sought or obtained.

[24]      As  I  noted  at  the  outset,  there  has  been  no  appropriate challenge to those fees having been properly incurred.  They should properly have been the subject of a cost revision.  It is difficult to see how the High Court can sensibly adjudicate on the fees dispute…

[16]     The applicant makes reference to her having filed a complaint against Mr

Rooke in relation to work done in 2005.

[17]     It appears this complaint has been filed relatively recently and is awaiting consideration.

[18]     The applicant states that on 24 July 2012 and “knowing there was NO clear decision by Goddard J 18 July 2012 I made payment $2,490.50 to Mr Rooke as a GESTURE to resolve the matter in bankruptcy notice proceeding…”.  She said she would not have paid that sum if she had known Mr Rooke would seek the costs he now does.

[19]     She wants the issue of costs payable to Mr Rooke to be suspended pending determination  of  her  Law  Society  complaint.     She  expects  that  all  previous

judgments for payment of Mr Rooke’s legal fees will be reversed and that this will

require Mr Rooke to refund all payments she has made to him.

Conclusions

[20]     Mr Rooke was within his rights to seal the order for judgment made on 13

March 2012 wherein the applicant was ordered to pay costs to Mr Rooke.

[21]     There was no obligation upon Mr Rooke to forward a copy of that sealed order to the applicant.

[22]     Mr Rooke was within his rights to serve a bankruptcy notice when he did.

[23]    The separate application to set aside the 13 March 2012 judgment was dismissed.   Shortly after the issue of that judgment and long after the filing of affidavit and the bankruptcy notice setting aside application, the applicant paid the costs ordered by Brewer J on 13 March 2012.

[24]     Mr Rooke has applied for costs upon the setting aside application albeit that that application succeeds but only because the full demand has now been met.

[25]     The applicant’s objections relate to historical matters which have no bearing at all at this time.  In due course if she must she can file an application for stay of execution.   Likely she will endure some difficulties in that respect because, as it appears, her Law Society complaint relates to matters that occurred 6 to 7 years ago.

[26]     Mr Rooke’s claim for costs has been calculated on a 2B basis.  He only seeks payment for the filing of his opposition papers, and for the cost of sealing his judgment.   That is appropriate and costs and disbursements are fixed in the sum

claimed.

Associate Judge Christiansen