Concrete Structures (NZ) Limited v Bennett

[2020] NZHC 367

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-495

[2020] NZHC 367

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of G D Bennett

BETWEEN

CONCRETE STRUCTURES (NZ) LIMITED

Judgment Creditor

AND

GREGORY DEBENHAM BENNETT

Judgment Debtor

Hearing:	3 March 2020
Appearances:	K Badcock, L Badcock and K Badcock for judgment creditor Judgment debtor in person
Judgment:	3 March 2020

EX TEMPORE JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This is a straightforward bankruptcy proceeding commenced by the judgment creditor,   Concrete   Structures   (NZ)   Ltd,   against    the    judgment    debtor,    Mr Gregory Bennett, for the enforcement of an order of the Employment Relations Authority dated 12 February 2019.

[2]    The only curiosity, and apparently the only issue, is a dispute as to whether the judgment creditor effected service of a bankruptcy notice dated 18 April 2019 on the judgment debtor. The judgment creditor says that the bankruptcy notice was served on 1 July 2019. The judgment debtor denies this. There being no other issue, if the judgment creditor is successful in establishing that it effected service as it alleges, then it may proceed with its application for an order adjudicating the judgment debtor

CONCRETE STRUCTURES (NZ) LIMITED v BENNETT [2020] NZHC 367 [3 March 2020]

bankrupt (though that of course is not to pre-determine the outcome of that application which is not for determination today).

[3]    The Court being faced with conflicting affidavit evidence as to service, Associate Judge Sargisson set the matter down for a hearing to determine the issue on the basis that the two material deponents, the judgment creditor’s Precast Manager, Mr Adriaan Beukes, who says that he served the judgment debtor, and the judgment debtor himself, would be available for cross examination.

[4]    I am satisfied that Mr Beukes served the bankruptcy notice on the judgment debtor on 1 July 2019.

[5]    The first point I would make about the evidence is that Mr Beukes was able to refer to records he kept to refresh his memory, in particular an email recording that he had effected service and providing details of the same to the judgment creditor’s solicitors early the next business day, whereas, understandably, the judgment debtor is entirely reliant on his memory.

[6]    It is also significant that Mr Beukes served the judgment debtor with the originating documentation in the Employment  Relations Authority proceeding on  14 December 2018. He deposes that on that occasion Mr Bennett identified himself to him. That is how Mr Beukes was able to say, in his affidavit dated 31 July 2019, that, when he served Mr Bennett with the bankruptcy notice on 1 July 2019, he knew him. Mr Bennett, in his affidavit, says that Mr Beukes could not have known who he was because he and Mr Beukes were not familiar with each other. Mr Bennett had evidently forgotten that it was Mr Beukes who served him with the originating documentation in the Employment Relations Authority proceeding. On that basis, I am inclined to the view that Mr Beukes’ memory of events is more reliable than    Mr Bennett’s.

[7]    There is a further point which only arose — at least in its fullness — during the course of the hearing before me. Mr Bennett’s case is essentially that he cannot recall being served with a bankruptcy notice at 4.00 pm on 1 July 2019. He believes that he would recall had he been served at that time and date. On that basis, he

maintains that he was not so served. Furthermore, when he gave evidence, he said — for the first time — that that could not have happened because he and his wife left in their mobile holiday home at about 2.00 pm on 1 July 2019 for a holiday and did not return until 5 July 2019. He says that if he had been there about 4.00 pm on 1 July 2019 the mobile holiday home would have been outside the house, and the evidence suggests that it was not. It is not in photographs said to have been taken of the property at the time of service, and Mr Beukes said that he did not recall the mobile holiday home being there. If, Mr Bennett continues, the mobile holiday home was not there then that means that he and his wife had already left. I record not only that the foundation for this contention was not laid in the affidavit evidence, but even today Mr Bennett did not have any corroborating evidence of this. In my view, there are any number of possible explanations for this apparent conundrum. Mr Beukes might be mistaken about the presence or otherwise of the mobile holiday home (which was not present on his earlier trip to the property but was on a third and later occasion he went to the property). Mr Bennett may be mistaken about the timing or dates of his holiday. In any event, this very late evidence does not in my view undermine Mr Beukes’ evidence as to service.

[8]    Finally, I am bound  to  observe  that  having  heard  both  Mr  Beukes  and Mr Bennett being cross-examined on their affidavit evidence, the clear impression I have is that Mr Beukes was focussed on providing accurate and reliable evidence to the best of his recollection, whereas Mr Bennett’s evidence was focussed on persuading the Court and that there was sufficient doubt about service to bring this proceeding to a halt.

[9]    In short I accept Mr Beukes’ evidence and conclude that he served Mr Bennett with the bankruptcy notice on 1 July 2019.

[10]   There therefore seems to be no impediment to the substantive application being set down for hearing and I direct the Registrar to liaise with counsel and Mr Bennett in order to do just that.

[11]   The judgment creditor is entitled to its costs on a 2B basis in relation to this hearing, together with such disbursements as may be allowed by the Registrar. I am not prepared to certify for a second (or third) counsel however.

Associate Judge Johnston

Solicitors:
Badcock Law, Rotorua for judgment creditor