Commissioner of Inland Revenue v Phillips

[2012] NZHC 1676

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2012-454-120 [2012] NZHC 1676

IN THE MATTER OF     the Insolvency Act 2006

AND

IN THE MATTER OF      the bankruptcy of RAYONI ELLEN PHILLIPS

BETWEEN  THE COMMISSIONER OF INLAND REVENUE

Judgment Creditor

ANDRAYONI ELLEN PHILLIPS Judgment Debtor

Hearing:         12 July 2012

(Heard at Palmerston North) Decision: 12 July 2012

ORAL DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Inland Revenue Department, PO Box 1462, Wellington

THE COMMISSIONER OF INLAND REVENUE V RE PHILLIPS HC PMN CIV-2012-454-120 [12 July 2012]

[1]      Before  the  Court  is  an  application  to  adjudicate  the  judgment  debtor bankrupt.

[2]      The application is based upon an outstanding taxation debt owing to the judgment creditor following an order of the District Court at  Levin against the judgment debtor for the sum of $67,814.42.

[3]      Following  that  judgment,  a  Bankruptcy  Notice  was  issued  against  the judgment debtor and served upon her on 3 March 2012.   The Bankruptcy Notice claimed the amount due in the District Court judgment together with additional costs.

[4]      No application to set-aside the Bankruptcy Notice nor any response to that

Notice was made by or on behalf of the judgment debtor.

[5]      On 8 June 2012, the judgment creditor then brought the present adjudication proceedings and these were served upon the judgment debtor on 25 June 2012.

[6]      Subsequently, on 6 July 2012 a document headed “Intention to Oppose the Making of an Order of Adjudication as Sought in the Application” was filed in this Court either by or on behalf of the judgment debtor Ms Phillips.   The grounds outlined in this document on which the judgment debtor disputed the present application were that:

That since February 2011, that through my officially appointed agent Robert Hemmingson, I have repeatedly endeavoured to make an arrangement for repayment of the debt by instalments.

[7]      The grounds of opposition in the document also refer to “evidence contained

in the affidavit filed in support of this notice”.

[8]      That affidavit was sworn by Mr Robert Hemmingson and as best I can tell appeared to blame others initially and then to recite a series of events involving Mr Hemmingson and officers of the Inland Revenue Department.

[10]     Leaving that on one side, however, it would appear from his affidavit that he claims to have had a number of discussions with officers of the Inland Revenue Department regarding the debt of the judgment debtor and possible instalment  payment  negotiations  to  see  if  this  could  be  paid  on  a  time payment basis.

[11]     Nothing it seems came of those discussions.

[12]     There is no doubt that the debt in question to the judgment creditor remains outstanding.

[13]     There is no appearance for or on behalf of the judgment debtor before me today.

[14]     Nor is there any evidence before the Court of any kind to indicate what her asset and liability position may be.  In addition, there is nothing before the Court to show whether the judgment debtor might be in a position to settle this debt given time to do so.

[15]     Under all these circumstances and given that an act of bankruptcy has clearly occurred here, there is simply no way that a Court can be satisfied that a proper defence to the present application exists.

[16]     That said, the application before me must succeed.

[17]     An  order  is  now  made  adjudicating  the  judgment  debtor,  Rayoni  Ellen

Phillips, bankrupt.

[18]     Costs are awarded to the judgment creditor on a 2B basis together with disbursements as fixed by the Registrar.

‘Associate Judge D.I. Gendall’