Copland v Goodwin - [2013] NZHC 652

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000519 [2013] NZHC 652

UNDER the Insolvency Act 2006

IN THE MATTER OF the bankruptcy of WAYNE ERNEST GOODWIN

BETWEEN BRIAN STEWART COPLAND Judgment Creditor

ANDWAYNE ERNEST GOODWIN Judgment Debtor

Hearing: 19 March 2013

Appearances: J C D Guest for Judgment Creditor
A C Beck for Judgment Debtor

Judgment: 28 March 2013

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] This is an opposed application by the judgment creditor, Mr Copland, to adjudicate the judgment debtor, Mr Goodwin, bankrupt.

[2] On 1 May 2006 Mr Copland, Mr Goodwin, and Corporate Capital Investment Co Limited signed a memorandum settling a proceeding by Mr Copland against Mr Goodwin which had been issued in the Dunedin High Court. The memorandum recorded obligations by Mr Goodwin to pay Mr Copland two sums of money, US$465,000 and NZ$30,000, the latter for costs. The former payment was due by
29 September 2006, the latter by 31 August 2006.

BRIAN STEWART COPLAND V WAYNE ERNEST GOODWIN HC DUN CIV-2012-412-000519 [28 March
2013]

[3] Neither payment was made. On 11 October 2006 the Court entered judgment against Mr Goodwin for both sums on the basis of an admission of claim held under the settlement agreement.

[4] On 23 July 2012 Mr Copland applied for the issue of a bankruptcy notice, and also applied without notice for an order for substituted service of the notice, and any subsequent bankruptcy application. On 28 July 2012 orders were made on the application, and on 31 July the bankruptcy notice was served at the offices of Ross Dowling Marquet & Griffin, solicitors, as permitted by the order. On 15 August Mr Copland applied for an order adjudicating Mr Goodwin bankrupt on the basis that he had failed to comply with the requirements of the bankruptcy notice within
10 working days of service, and had therefore committed an act of bankruptcy.

[5] On 5 October 2012 Mr Goodwin, who had instructed a firm of solicitors and counsel, filed a notice of intention to oppose the adjudication application on the basis that there was an application pending before the Court to set aside the judgment on which it was based.

[6] On 6 November the Court heard the application to set aside the judgment and on 30 November issued a reserved decision dismissing the application. The bankruptcy application, which had been adjourned at its first call, was called again on 3 December. It was adjourned once more to 11 February and on that date adjourned for a defended hearing. Three days prior to that call Mr Goodwin, with different solicitors and counsel instructed, filed an amended notice of intention to oppose the application. The ground given in the first notice of opposition is not repeated (the application had been argued and dismissed). Instead Mr Goodwin says:

(a) The bankruptcy notice was not served in accordance with the

Insolvency Act 2006, and there has been no act of bankruptcy.

(b)The judgment debtor has a counterclaim against the judgment…

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 Copland v Goodwin

Details

AGLC: Copland v Goodwin [2013] NZHC 652
Case: [2013] NZHC 652
Decision Date: 28 March 2013

CaseChat Overview and Summary

In Copland v Goodwin, Mr Copland, the judgment creditor, opposed an application by Mr Goodwin, the judgment debtor, to set aside a judgment entered on the basis of a settlement agreement. The court dismissed the application and Mr Copland applied to have Mr Goodwin adjudicated bankrupt on the basis of that judgment. Mr Goodwin opposed the bankruptcy application on three grounds, the first being that the bankruptcy notice was not served on him in accordance with the Insolvency Act 2006. The court found that a substituted service order could be made in respect of a bankruptcy notice, but that the order in this case was not supported by an evidentiary foundation, as no attempt had been made to serve Mr Goodwin personally. However, the court found that there was no prejudice to Mr Goodwin as a result of this defect, and the substituted service order was still in force. The second ground of opposition was that Mr Goodwin had a counterclaim against Mr Copland that he was not able to raise in the original proceeding on which the debt is based. The court found that Mr Goodwin's claim was lacking in particulars and that it fell well short of satisfying the court that there was a genuine cross claim which might equal or exceed the amount of the judgment debt. The third ground of opposition was that it was an abuse of process for Mr Copland to proceed with a bankruptcy application knowing that he was in breach of the agreement on which the judgment debt was based. The court found that this ground was no wider than the more specific challenge to the bankruptcy proceeding brought on the basis of the claim which Mr Goodwin maintains he has against Mr Copland, and that the application was not being used unfairly. The court declined to exercise its discretion under s 37 of the Insolvency Act 2006 not to adjudicate Mr Goodwin bankrupt.

Orders