Conroy Removals Limited v Sameer - [2019] NZHC 527

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-535

[2019] NZHC 527

UNDER The Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of Madhu Sameer

BETWEEN

CONROY REMOVALS LIMITED

Judgment Creditor

AND

MADHU SAMEER

Judgment Debtor

Hearing: (Determined on the Papers)

Counsel:

S Munro and C O’Brien for Judgment Creditor M Sameer – self represented Judgment Debtor

Judgment:

21 March 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

(as to lifting of stay)

Summary

[1] On 17 April 2018, Associate Judge Matthews dismissed an application by the judgment debtor to set aside a bankruptcy notice obtained by the judgment creditor on 11 August 2017.1 The judgment debtor appeals that decision and has obtained a stay of the bankruptcy proceeding regarding the hearing of the appeal. The judgment creditor has applied to lift the stay.

1 Conroy Removals Ltd v Sameer [2018] NZHC 698.

CONROY REMOVALS LTD v SAMEER [2019] NZHC 527 [21 March 2019]

[2] The bankruptcy notice demanded the sum of $18,846.51, comprising the sum of $9,045.51 being an order of the Disputes Tribunal dated 14 December 2016 as well as the amount due under a costs award made in the District Court on 27 July 2017, in respect of an unsuccessful appeal by the judgment debtor against the order of the Disputes Tribunal.

The Disputes Tribunal judgment

[3] The judgment obtained by the judgment creditor in the Disputes Tribunal related to costs incurred by the judgment creditor having uplifted and stored a shipping container which was shipped by the judgment debtor from California (United States of America) to Christchurch (New Zealand) and which contained the judgment debtor’s property.

[4] The judgment debtor was in dispute with her USA shipping company by the time the container arrived in New Zealand. In order to avoid penalty charges from the Port company that would accrue if the container was not uplifted, and to allow the judgment debtor to obtain her goods, it was agreed that the judgment debtor would pay the judgment creditor directly who would then arrange for the container to be delivered. The judgment creditor uplifted the container. When it was opened in the judgment debtor’ presence, it was discovered that it was required to be fumigated which was then completed.

[5] A dispute then arose as to whether the judgment debtor refused delivery of the container, or whether the judgment creditor refused to deliver the container. The goods were then stored by the judgment creditor. The judgment debtor brought a claim in the Disputes Tribunal against the judgment creditor for damages she said resulted in the judgment creditor’s alleged refusal to deliver up the chattels. The judgment creditor counterclaimed for the storage costs.

[6] It is clear from the Dispute Tribunal’s decision as a whole that it was concerned with a contract made between the parties in relation to how the judgment creditor would deal with the judgment debtor’s goods.

[7] The Disputes Tribunal held that there was a…

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 Conroy Removals Limited v Sameer

Details

AGLC: Conroy Removals Limited v Sameer [2019] NZHC 527
Case: [2019] NZHC 527
Decision Date: 21 March 2019

CaseChat Overview and Summary

Conroy Removals Limited, a New Zealand-based company, initiated bankruptcy proceedings against Madhu Sameer, a debtor residing in Christchurch. The High Court of New Zealand, Christchurch Registry, presided over the case, which involved the enforcement of a bankruptcy notice issued by Conroy Removals Limited against Sameer. Conroy Removals Limited claimed that Sameer owed a debt of $18,846.51, which included a Disputes Tribunal order and District Court costs. The debt arose from a contract between Conroy Removals Limited and Sameer, which involved the transportation of a shipping container from the United States to New Zealand. Conroy Removals Limited uplifted the container, and a dispute arose over whether Sameer refused to accept the container or whether Conroy Removals Limited refused to deliver it. The legal issues in the case were whether the stay of the bankruptcy proceedings should be lifted and whether the judgment debtor failed to diligently prosecute her appeal. The Court found that the appeal had been determined through abandonment, and therefore, the stay ordered by Associate Judge Osborne came to an end. The Court also found that the judgment debtor did not prioritise compliance with the mandatory timetables under the Court of Appeal Rules, nor did she comply with the self-imposed 90-day extension that she sought in the first extension of time. The Court concluded that declining a stay would not cause a substantial miscarriage of justice and that the judgment debtor could pursue any claims she believed she had against Conroy Removals Limited. The adjudication application was set down for hearing at 10 am on Tuesday, 16 April 2019, in the High Court at Christchurch.

The Court ordered that the stay of the bankruptcy proceedings against Sameer be lifted, and the adjudication application be set down for hearing. The Court also found that the judgment debtor had failed to diligently prosecute her appeal, which was a condition of the stay ordered by Associate Judge Osborne. The Court noted that the judgment debtor did not prioritise compliance with the mandatory timetables under the Court of Appeal Rules, nor did she comply with the self-imposed 90-day extension that she sought in the first extension of time. The Court concluded that declining a stay would not cause a substantial miscarriage of justice and that the judgment debtor could pursue any claims she believed she had against Conroy Removals Limited. The adjudication application was set down for hearing at 10 am on Tuesday, 16 April 2019, in the High Court at Christchurch.

Orders