Commissioner of Inland Revenue v McGlynn HC Auckland CIV 2010-404-69

[2010] NZHC 1058

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-0069

BETWEEN  COMMISSIONER OF INLAND REVENUE

Judgment Creditor

ANDJOHN JAMES MCGLYNN Judgment Debtor

Hearing:         15 June 2010

Appearances: Mr Kleinbaum for Commissioner

Mr Farrands for debtor

Judgment:      15 June 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Counsel:

Inland   Revenue   -   Takapuna,   P   O   Box   33150,   Takapuna,   AUCKLAND:   by   email   - [email protected]

Morrison Kent, Auckland – by email: nick[email protected]

COMMISSIONER OF INLAND REVENUE V MCGLYNN HC AK CIV-2010-404-0069  15 June 2010

[1]      This proceeding has been adjourned on two previous occasions.  On the last occasion Associate Judge Gendall directed that the matter was to be adjourned again, but that today was to be the final adjournment.  The debtor through his counsel has produced an affidavit marked “in opposition to adjudication order”.  But in fact no notice of opposition has been filed.  The notice of opposition was due some months ago.  It is necessary for the debtor to obtain leave to file the notice of opposition at this point.   The affidavit that Mr Farrands has produced is helpful.   It covers a number of matters which are relevant to that issue.   It speaks of the attempts that have been made to settle the matter and an offer which the debtor has made for some

$60,000 (versus a debt of $85,000).  I have advised parties to insolvency proceedings on a number of occasions that it is not the Court’s job to intervene and direct a creditor party that it should or should not accept a negotiated settlement.  In the end the jurisdiction this Court exercises is not a debt collecting jurisdiction.  The Court is concerned with cases where a debtor is alleged to be insolvent.   It is against the public interest that such persons be allowed to maintain their freedom to continue in business and incur debts etc.   In this case the debtor is insolvent and that is unquestionable.  There is nothing unusual or out of the way about the circumstances in which he comes to this position.  I am not without sympathy for the fact that he has apparently not been able to recover debts owed to him but that is very much an everyday occurrence I regret to say.  The fact of the matter is that this insolvency proceeding was started in April and now, on the day when by direction of Associate Judge Gendall, it was proceed the debtor has decided that the time has arrived where he should move the proceeding on to a defended basis.  In my view he is too late. There could be no justification for granting him leave at this point.  He does not have any properly arguable ground for opposing an application to adjudicate him.  Leave

is declined.

J.P. Doogue

Associate Judge