Complete Construction Limited v Siemer - [2020] NZHC 915

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-0423

[2020] NZHC 915

UNDER THE Insolvency Act 2006

IN THE MATTER

Of the bankruptcy of VINCENT ROSS SIEMER

BETWEEN

COMPLETE CONSTRUCTION LIMITED

Judgment Creditor/Respondent

AND

VINCENT ROSS SIEMER

Judgment Debtor/Applicant

Hearing: On the papers

Judgment:

5 May 2020

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 6 May 2020 at 10am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Skinners Law, Auckland

Copy to:
Mr V. Siemer

Complete Construction Ltd v Siemer [2020] NZHC 915 [6 May 2020]

[1] Mr Siemer applies for an order that I recuse myself from hearing further matters in this case. The immediate matter to be dealt with, if there is no order for recusal, is an application made by Mr Siemer to recall the judgment I gave in this matter on 12 September 2019, in which I directed that Mr Siemer’s application to set aside the relevant bankruptcy notice was to be regarded for the purposes of r 24.10 of the High Court Rules 2016 as having been determined against Mr Siemer on 14 August 2019.

Background

[2] Mr Siemer applied informally by email for the recall of that judgment under the slip rule, and I dismissed that application in a Minute dated 13 September 2019.

[3] The matter began in this Court with the issue of a bankruptcy notice by the judgment creditor (Complete Construction), and Mr Siemer’s application to set aside the bankruptcy notice. That application came before me in the list on 2 May 2019.

[4] At that stage, I noted that Mr Siemer was a “banned litigant”, under an order made in 2016 under s 88B of the Judicature Act 1908 which had the effect of precluding him from commencing any litigation without the leave of a Judge. I noted at the hearing on 2 May 2019 that there appeared to be an issue, which I would need to look at further, as to whether the filing of an application to set aside a bankruptcy notice amounted to the commencement of a proceeding for the purposes of s 88B. Mr Siemer asked me to give a ruling on that issue on the spot, but I told him that I was not in a position to give a ruling that day – I would need to address the authorities. I said I would do that and then issue a Minute on the matter.

[5] I later considered the authorities, including the judgment of Associate Judge Bell in Westpac New Zealand Ltd v Boulton,1 in which the Court held that the issue of a bankruptcy notice does constitute the commencement of a civil proceeding; the relevant proceeding is commenced when the judgment debtor applies to set aside the bankruptcy notice. I concluded that Mr Siemer needed to apply for leave to file his setting aside application, and I noted that there would be an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Complete Construction Limited v Siemer

Details

AGLC: Complete Construction Limited v Siemer [2020] NZHC 915
Case: [2020] NZHC 915
Decision Date: 5 May 2020

CaseChat Overview and Summary

In the case of Complete Construction Limited v Siemer, the High Court of New Zealand dealt with an application by Vincent Ross Siemer, a judgment debtor, for the recusal of Associate Judge Smith. The case concerns Siemer's application to set aside a bankruptcy notice issued by Complete Construction Limited, a judgment creditor, and subsequent appeals regarding procedural rulings and costs. Siemer, who is a banned litigant, argued that several procedural rulings made by Associate Judge Smith against him constituted bias and warranted the Judge's recusal. Siemer contended that the Judge had made numerous procedural rulings against him, ignored his oral applications for leave, and wrongfully refused to cancel a hearing fixture. He also argued that he was denied a proper opportunity to be heard regarding the legitimacy of the alleged debt and that the Judge failed to provide sufficient reasons for deferring the recall question.

Associate Judge Smith addressed Siemer's allegations point by point, asserting that the procedural rulings were necessary and justified, as Siemer was a banned litigant who needed to obtain leave to continue with the setting aside application. The Judge referred the leave issue to a Justice of the Court due to the complexity and novelty of the matter. The Judge also noted that the issue of releasing the transcript was an administrative matter and that the decision to maintain the fixture was made by another Judge. As for the costs, the Judge pointed out that Siemer had put Complete Construction to the expense of filing opposition documents and appearing at hearings, and thus, costs were appropriately awarded.

In summary, Associate Judge Smith rejected Siemer's application for recusal, finding that there was no reasonable apprehension that the Judge might decide the case other than on its merits. The Judge concluded that Siemer's real issue was dissatisfaction with certain procedural rulings, which did not constitute bias or warrant recusal. Siemer was directed to file written submissions for his formal recall application by 15 May 2020.

Orders