Conroy Removals Ltd v Sameer - [2018] NZHC 698

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000535

[2018] NZHC 698

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: 26 March 2018

Appearances:

S D Munro and C O’Brien for Judgment Creditor M Sameer (Judgment Debtor) in person

Judgment:

17 April 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] On 11 August 2017, Conroy Removals Limited (CRL) issued a bankruptcy notice to Ms Sameer claiming payment of the sum of $18,846.51. This comprised the sum of $9,045.51 owing under an order of the Disputes Tribunal dated 14 December 2016, $9,701 owing under an order of the District Court dated 27 July 2017 for payment of costs on an unsuccessful appeal by Ms Sameer against the order of the Disputes Tribunal, subsequent costs for sealing that order, and a fee for a certificate of judgment.

[2]Ms Sameer has not paid any part of the sum claimed in the bankruptcy notice.

[3]Ms Sameer applies to set the bankruptcy notice aside.

CONROY REMOVALS LTD v SAMEER [2018] NZHC 698 [17 April 2018]

[4] The orders Ms Sameer seeks in her 12 page application include an order to join three other parties to the proceeding, an order that the contract between her and CRL (as found by the Disputes Tribunal) is invalid or cancelled or void, an order directing release of goods held by CRL, damages, punitive damages and such other relief as the Court thinks appropriate. This judgment determines only the application to set aside CRL’s bankruptcy notice.

[5] The grounds on which the orders are sought are far-reaching. In essence, Ms Sameer says she has no contractual relationship with CRL, that the expenses for which they have judgment were incurred as a result of their own actions not hers, that CRL has fabricated facts and evidence in the Disputes Tribunal, and that CRL’s actions amounted to criminal activities as well as breaches of the Fair Trading Act 1986. CRL is said to be liable to her in contributory negligence, and the Disputes Tribunal lacked jurisdiction to hear her claims on the basis of fraud, conspiracy, deception and “criminal matters”. On that basis, the judgment of that Tribunal, and therefore the appeal, are “incomplete/invalid/erroneous/void/voidable” and must be “set aside/voided”. Various other rights are asserted, and reliance is stated to be made on a number of sections of the Crimes Act 1961, the Fair Trading Act, the New Zealand Bill of Rights Act 1990, the Statute of Frauds Amendment Act 1828, the Contracts (Privity) Act 1982, the Carriage of Goods Act 1979, the Insolvency Act 2006, various legal doctrines (including stare decisis) and various equitable principles. These include unjust enrichment, abuse of process, breach of fiduciary duty, negligence, breach of duty of care, intentional infliction of emotional distress, conversion, negligent representation, intentional misrepresentation, civil conspiracy, violation of civil rights of individuals viz freedom of thought, speech, association…

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 Ltd v Sameer

Details

AGLC: Conroy Removals Ltd v Sameer [2018] NZHC 698
Case: [2018] NZHC 698
Decision Date: 17 April 2018

CaseChat Overview and Summary

Conroy Removals Limited issued a bankruptcy notice to Madhu Sameer, claiming $18,846.51 for storage fees and costs. Ms Sameer applied to set the notice aside, arguing she had a cross-claim against Conroy Removals that could not be used in the original proceedings. The High Court had to decide if Ms Sameer's claims qualified as a cross-claim under the Insolvency Act 2006. Ms Sameer argued she had a claim for fraud against Conroy Removals that was outside the jurisdiction of the Disputes Tribunal and District Court. The Court found that Ms Sameer had a contractual claim against Conroy Removals, which she presented in the Disputes Tribunal and lost. The Court held that Ms Sameer's current claims, based on fraud and conspiracy, were not genuine triable claims and did not have a reasonable probability of success. Therefore, Ms Sameer did not have a cross-claim against Conroy Removals under the Insolvency Act. The application to set aside the bankruptcy notice was dismissed, with Ms Sameer ordered to pay costs to Conroy Removals.

Orders