Coromandel Independent Living Trust v Hamon

[2016] NZHC 392

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-373 [2016] NZHC 392

BETWEEN

COROMANDEL INDEPENDENT

LIVING TRUST Judgment Creditor

AND

LUCY ORA HAMON Judgment Debtor

Hearing:	17 February 2016
Appearances:	Mr Coltman for Judgment Creditor Ms Hamon in person
Judgment:	9 March 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

09.03.16 at 4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

COROMANDEL INDEPENDENT LIVING TRUST v HAMON [2016] NZHC 392 [9 March 2016]

Introduction

[1]      The judgment creditor seeks an order that the judgment debtor be adjudicated bankrupt because she has not paid the sum of $94,362.61 which represents the amount of costs orders entered against the judgment debtor by the Employment Court on 25 June 2014 together with interest.

[2]      The judgment creditor served a Bankruptcy Notice on the judgment debtor on

13 October 2014.   The judgment debtor did not comply with that Notice.   The judgment debtor has subsequently opposed the making of an order of adjudication.

[3]      The judgment debtor represented herself in this proceeding.   She filed the following grounds of opposition:

26.The Employment Court is constrained in the action it can take due to the parameters of its authority but the High Court with its inherent jurisdiction is not.  I therefore seek that this Court refers the crime I have been a victim of, to the Police.

Background

27.      …

28.      ….

29.      I forgave my perpetrators and their family.

30.Mike Noonan and the creditor enjoys government funding for social services, but is not so charitable regarding the effects of the abuse on woman and treats it as a lever to gain an advantage – as is demonstrated by him blackmailing me.

Financial circumstance:

31.      My financial circumstances would be described as constrained.

32.      I have no personal assets.

33.I live near Coromandel and there is little employment and in any event the creditor’s principal trustee and manager Mike Noonan ensures  that  I  cannot  obtain  employment  by  sending  his  emails around the community.

34.I currently sub-contract to an organisation but I have been advised the principal contract ends in September of this year.

35.I cannot leave Coromandel as I have the shared day to day care of my three year old grandson.

36.In my absence, my husband cares for our grandson as I am the sole provider for the family, as my husband suffered a stroke several years ago.

37.I did seek an undertaking from the creditor not to interfere with my employment or my contracting prospects which would enable me to pay the legal costs bill – but its principal trustee and manager, Mike Noonan has refused to do so.

38.Mike Noonan sprayed the emails around the community to damage my chances of obtaining employment or contract work and as a consequence I am unable to pay the legal costs bill.

39.Accordingly, I seek from this Court an order that the application to bankrupt me is declined as it is not just or equitable to adjudicate me bankrupt.

40.I also seek an order restraining Mike Noonan and the creditor from further damaging my employment and contracting opportunities.

[4]      It will be noted that there are references in the above statement to Mr Noonan making damaging statements that adversely affected the employment prospects of the judgment debtor.

[5]       I understand that it is alleged by the judgment debtor that Mr Noonan who is a trustee of, and also occupies a management position with, the judgment creditor has disseminated in the area where the judgment debtor lives details of criminal convictions entered against the judgment debtor in the courts of Western Australia many years ago.

[6]      I shall return to that topic below.

[7]      Essentially the case for the judgment debtor is that no purpose would be served by making her bankrupt.   Further, she suggests that the actions which she alleges Mr Noonan carried out amounted to misconduct which is relevant when considering the discretion that the court must exercise whether or not to bankrupt the judgment debtor.  It is further her position that she does not own any property and a bankruptcy order would serve no useful purpose because it would not lead to the debt which she undoubtedly owes being paid.

[8]      The debt which the judgment creditor is attempting to enforce came about as a result of the Employment Relations Authority (ERA) and the Employment Court making costs orders against the judgment creditor in regard to a claim which the judgment debtor brought and which was heard in those jurisdictions but in which she was unsuccessful.

[9]      The employment law claim was summarised in the affidavit of Judge M E Perkins dated 8 April 2014.

[10]     The judgment debtor had been employed by the judgment creditor. After a dispute between the parties the judgment debtor resigned in 2008 claiming she had been  constructively dismissed.    She  brought  a  claim  seeking  lost  remuneration, compensation and a penalty in the ERA but was unsuccessful.   She then sought a review  in  the  Employment  Court  which  was  similarly  unsuccessful.    She  had claimed that she took employment with the judgment creditor on the basis that she would be allowed to continue her association with another charitable trust known as Wahine Ora of which she was a trustee and employee.  She said that her constructive dismissal came about when the judgment creditor represented by Mr Noonan and other “agents” sought to have her end her association with Wahine Ora.   Judge Perkins  described  the background as  being that  both  the judgment  creditor and Wahine Ora applied for funding from the Tertiary Education Commission (TEC).  In fact Wahine Ora joined the application for funding which was successful.  This led to problems because there were disputes as to how the funding when it came to hand was to be applied given that both the judgment creditor and Wahine Ora could be seen as joint recipients of the TEC funds.  Disputes occurred as to the hours that the judgment debtor should work because the judgment debtor wanted to spend some of the time furthering the  interests of Wahine Ora.   The judgment debtor and her husband also made a separate application for funding for the purpose of supporting a bi-lingual  unit  at  Coromandel Area  School.    The  judgment  creditor  apparently perceived  overlap  in  the  roles  of  the  two  organisations  which  could  not  be reconciled.  It is not necessary to set out the entirety of the dispute other than to say that the parties took mutually irreconcilable positions on the matters that were in issue with, as I have said, the consequence that the judgment debtor eventually considered   that   she   had   been   constructively   dismissed.   Costs   orders   were

subsequently made in the Employment Court which were additional to those previously made in the ERA.

Legal principles

[11]     The following statement of principle was set out in the judgment of Associate Judge Faire in the case of Re Fontein, ex parte Bank of New Zealand.1   In that case, as in this, the jurisdictional requirements for making an order of adjudication were established and the remaining question was whether the High Court in its discretion ought to make the order sought:2

[6]      The jurisdictional requirements are met in this case. That was acknowledged by Mr Connor. I must now consider the Insolvency Act 2006, s 37. Section 37 provides:

“37.     Court may refuse adjudication

The Court may, at its discretion, refuse to adjudicate the debtor bankrupt if—

(a)      the  applicant  creditor  has  not established the requirements set out in section 13; or

(b)       the debtor is able to pay his or her debts; or

(c)       it is just and equitable that the Court does not make an order of adjudication; or

(d)      for  any  other  reason  an  order  of

adjudication should not be made. ”

…

[8]      In Eide v Colonial Mutual Life Assurance Society Ltd  [[1998] 3

NZLR 632 (HC)] the general principles involved in the exercise of the discretion under the then Insolvency Act 1967, s 26 (now the Insolvency Act 2006, s 37) were analysed. The important matters were the following:

“1)‘A creditor who establishes the jurisdictional facts set out in s 23 is not automatically entitled to an order. On the other hand, it is for an opposing debtor to show why an order should not be made.’

1        Re Fontein, ex parte Bank of New Zealand HC Auckland CIV-2009-404-7769, 22 November

2010.

2        At [6]-[9].

McHardy v Wilkins & Davies Marinas Ltd (Court of Appeal, Wellington, CA 54/93, 7 April 1993) at p 3.

2)‘ … in the exercise of the discretion under s 26 it is proper for the Court to consider not only the interests of those directly concerned — the petitioner, other creditors, the debtor — but also the wider public interest.’ McHardy v Wilkins & Davies Marinas Ltd (supra) at p 3.

3)In determining whether an order should be made, the wider public interest must be taken into account  to  determine  whether  adjudication  is

‘conducive or detrimental to commercial morality and  the  interests  of  the  general  public.’  Re

Nisbett, ex parte Vala [1934] GLR 553 [Green]

at p 556.

4)‘ … on a bankruptcy petition the Court must have regard   to   public   interest   in   a   way   which transcends the interest of the immediate parties to the proceeding … The public interest in exposing and controlling an insolvent debtor is one which exists   quite   independently   of   the   separate question of debt collection by his immediate creditors.’ Re Fidow [1989] 2 NZLR 431 [Blue] at p 444.

5)     Absence of assets is a factor but:

‘ … even the undoubted absence of assets will not necessarily preclude an order, for the circumstances may be such that the debtor  ought in the public  interest  to  be visited with the disqualifications that go with bankruptcy. ’

McHardy v Wilkins & Davies Marinas Ltd (supra) at p

3.

6)     Another matter:

‘  …  is  the  potential  for  further investigation.  A  bankruptcy  makes available  to  creditors  an  array  of procedures for investigating the financial circumstances of the debtor. Those procedures   are   likely   to   prove   more effective  than  an  investigation  conducted by other means. ’

Re Fidow (supra) at p 444.

7)     There is a need:

‘ … for the Court to balance the various considerations relevant to the case, and to determine  whether  in  the  end  the  debtor has succeeded in showing that an order ought not to be made. ’

McHardy v Wilkins & Davies Marinas Ltd (supra) at p

4.

[9]       To  the  above  summary  I  add  that  the  oppressive  use  of  the bankruptcy process may be a ground for refusing an order: Baker v Westpac Banking Corporation [CA212/92, 13 July 1993 at 4-5].

[12]     I respectfully consider that that statement is correct and I intend to follow it.

[13]     I also intend to adopt the observation of Associate Judge Bell in Darby v Official Assignee that one of the objectives of bankruptcy is to make the debtor accountable for his or her debts.3   I understand this to mean that it is not in the public interest that a debtor should be able to default on her debts and for there to be no apparent consequence.   Such an approach would subvert the expectation that individuals will repay their debts.  Accountability also means that there is a process that acknowledges the harm that is done to those who suffer loss at the hands of defaulting debtors.

[14]     The question is whether in the circumstances the court ought to exercise its discretion on that ground to withhold an adjudication order.

[15]     The authorities make it clear that it is not the case that an adjudication order can be made only where it might enable the judgment creditor to recover the debt that it is owed.  In the Court of Appeal judgment of McHardy v Wilkins & Davies Marinas Limited (In Rec) Hardie Boys stated:4

Another ground may be the undoubted absence of assets, for if only to save expense to the State the Court will not do "a vain thing": In re Robinson (1883) 22 Ch D 816.But even undoubted absence of assets will not necessarily preclude an order, for the circumstances may be such that the debtor ought in the public interest to be visited with the disqualifications that

3      Darby v Official Assignee [2013] NZHC 22 at [14].

4      McHardy v Wilkins & Davies Marina Ltd (in rec) CA54/93, 7 April 1993 at 3, and see discussion of this case in Insolvency Law and Practice (looseleaf ed, Brookers) at [IN37.11].

go with the bankruptcy.  As Fisher J put it in Re Fidow [1989] 2 NZLR 431,

444:

“The public interest in exposing and controlling an insolvent debtor  is  one  which  exists  quite  independently  of  the separate question of debt collection by his immediate creditors.”

[16]     There have been other cases in which the issue of likelihood or otherwise that a bankruptcy will lead to recovery of the debt has been considered.  In Re Nicholson, ex parte Fletcher Merchants Limited  after referring to McHardy the High Court held that it would be a vain thing to make the judgment debtor bankrupt, and would do

more harm than good.5     If she was made bankrupt it would be no danger to the

commercial community but she could lose her job and require financial support from the state.  The bankruptcy petition was dismissed on those grounds.  As is usual, in this case there will need to be an examination of the consequences for the judgment debtor that would follow the making of an order of adjudication.

[17]     I also accept that one of the objectives of making bankruptcy orders is the future protection of the community.  This will be particularly important where the judgment debtor has engaged in risky commercial ventures.

[18]     The circumstances in the present case are somewhat different from those which were adverted to in Re Nicholson for reasons I shall shortly discuss.

The email allegations

[19]   The next matter concerns the allegations that Mr Noonan disseminated damaging material about the judgment debtor.

[20]     Mr Noonan apparently communicated with the Western Australian Director of Public Prosecutions and received an email in response on 15 April 2008 stating that:

A Ms Lucy Ora Hamon was convicted on one March [2001] in the District Court  of  Western  Australia,  Perth  of  15  charges  of  [f]raud.    She  was sentenced to a term of 3 years imprisonment with parole.  [T]his term was suspended for two [y]ears.

5      Re Nicholson, ex parte Fletcher Merchants Ltd B79/93, 30 March 1994.

[21]     The view that the judgment debtor set out in her affidavit concerning the emails explains, in her view their relevance to this proceeding:

33.  I live near Coromandel and there is little employment and in any event the creditor’s trustee and manager Mike Noonan ensures that I cannot obtain employment by sending his emails around the community.

….

38.  Mike Noonan sprayed the emails around the community to damage my chances of obtaining employment or contract work, and as a consequence I am unable to pay the legal costs bill. [i.e. the debt which the judgment creditor is seeking to enforce]

[22]     I discussed in detail with the judgment debtor the evidence concerning how widely the above email had been disseminated.  It turned out that such evidence as there was, establishes that it had been sent to 8 different people, all of whom were members of or associated with the judgment creditor.   It had been sent to one person/organisation outside this category and that was to a law firm in Hamilton. Why it was sent to the law firm is unclear.

[23]     The evidence about the dissemination of the email comes from an affidavit of documents which the judgment creditor gave in the Employment Court proceedings between the parties, a copy of which the judgment debtor produced as an exhibit to one of her affidavits without objection from the judgment creditor.

[24]     While it may perhaps be regrettable that the judgment creditor considered that damaging material of this kind should be located and then disseminated in the way that the evidence suggests it was, the real question is whether the actions of the judgment creditor are relevant to the extent that they might constitute a reason why the court ought in its discretion to withhold an order for adjudication.

[25]     The approach that I intend to take is as follows.   There are limits to the matters which the court is entitled to place in the balance when exercising its discretion whether or not to make an order of adjudication.  The fact that a party to the bankruptcy proceedings may have behaved in a way that is open to criticism does not necessarily result in the court withholding an order for adjudication.   I should add that there are two sides to the issue of whether Mr Noonan is to be criticised for

what he did.  As I understand it, the judgment creditor is a service provider which depends upon public funding to provide services, as does the judgment debtor.  It is possible  that  Mr  Noonan  could  have  considered  it  was  legitimate  to  make information that he had obtained which reflected adversely on the judgment debtor more widely available as a matter of public interest.  That is the explanation which Mr Coltman for the judgment creditor put forward on its behalf.

[26]     It is possible that a contributing reason was that the dispute between the parties had become very personalised.  It is not possible to come to any firm view, though, about that possibility.   In this connection I should note that the judgment creditor  offered  to  make  Mr  Noonan  available  for  cross-examination  about  the emails, but the judgment debtor did not take up the offer.

[27]     The significance, if any, of the emails will be discussed below.  But at this point I should indicate my view that it does not seem that the evidence before the court justifies the submission that the judgment debtor made that there had been widespread dissemination of the emails in the Coromandel area.    Such communication as had been made was akin to being in-house.

Would a bankruptcy order result in payment of the debt?

[28]     The judgment creditor was of the view that an order for adjudication would lead to an examination of the financial affairs of the judgment debtor which could locate and  recover  significant  assets  that  could  be applied  to  paying  her debts, including that of the judgment creditor.

[29]     Evidence was adduced by the judgment creditor showing that the judgment debtor was a registered owner of a part share in some 18 Māori land properties. However, I am satisfied that the answer that the judgment debtor put forward in cross-examination is correct.  These are fractional interests in land holdings which devolved upon the judgment debtor pursuant to trusts established by the Māori  Land Court and that they are not properties of any particular value and they are not properties that she owns beneficially.

[30]     Evidence was also given that in the course of the ERA/Employment Court proceedings the judgment debtor put forward a schedule of entities in which she was involved or had a relationship with and sought to explain in relation to each what if any expectation she had of receiving income from that source.   A copy of the document in question is at Appendix A to this judgment.

[31]     Appendix A lists a series of trusts, companies and trading names which the judgment debtor produced to the Employment Court as being potential sources of income.  The explanation which the judgment debtor put forward about the various entries and that document which she herself had apparently produced establishes the following position.  The document was produced in or about 2008 which was about the time when the judgment debtor claimed to have been constructively dismissed from her position with the judgment creditor.  It was not current at the time when the proceeding came before the Employment Court and it is still less current today.

[32]     What, however, it appears to establish is the following.   It shows that the judgment debtor received income at some point from the community assistance agencies which she carried out work for.  An example is the Women’s Refuge Te Whariki Mana Wahine O Hauraki organisation.  There is other evidence which the judgment creditor put forward that at the time when a private investigator retained by the  judgment  creditor  called  at  the  premises  of  that  organisation  in  2015,  the judgment debtor was an employee.

[33]     Another category of entities were, the judgment debtor explained to me, trading names for herself in person.  Examples are Big Girl Fashions and Keystroke Solutions.  She explained to me that she had ideas of commencing businesses with those respective names but they never came to anything.  I interpolate that it seems odd that she would mention this material in the schedule specifying what income she had earned, even if to  enter “nil”  in each case if the entity had never been in business.   However, that is simply one of the many uncertainties that have been encountered in this case when it comes to attempting to form a picture about the true financial position of the judgment debtor.

[34]     Another entry on Appendix A is WO Consultants which was apparently set up to  assist  Māori  women  in  business.     It  is  unlikely  to  have  been  a  wholly philanthropic organisation though because the annotation which appears opposite it is “loss being calculated” which is suggestive of the fact that tax losses may have accompanied the activity of the organisation.

[35]     There is also a series of trusts, for example Hamon Trust 1, which was apparently set up to carry out property developments.  Unfortunately the judgment debtor was vague about the nature of these trusts.   In answer to my questions it became apparent that no trust deed had been executed and so it was difficult to see by what means the trusts had been brought into existence, if they in fact had been at all.

[36]   Accompanying the references to the trust that was set up for property development purposes was evidence from the judgment debtor that she and her husband had been engaged in property development.  One development which took place was at Whitianga.   The judgment debtor said that a gross profit of approximately $200,000 had been earned but that overall the development had returned a loss.

[37]     The judgment debtor also referred to a property which she and her husband had owned in Dunedin which had been sold at mortgagee sale for a loss.

[38]     The  judgment  debtor  lives  in  what  she  describes  as  a  converted  garage together with her husband and a child who is a member of her whanau.   This property is apparently situated on collectively owned Māori land.  They have two older cars which, I accept, are of little current value.

[39]     It  would  appear  that  the  judgment  debtor’s  husband  had  been  a  builder developer but the evidence of the judgment debtor is that he has since had a stroke and does not earn any income.

[40]     The judgment debtor has worked in the area of providing social support for

Māori women and children and it would not seem that she has earned very much in

so doing.  She is currently undertaking a course to improve her skills in that area. She did not provide any detail of where this was taking place but she did state that she had assumed a student loan of undisclosed size in order to undertake her studies.

[41]     Mr Coltman for the judgment creditor considered that these multiple entities and interests in property which the judgment debtor had disclosed, some of which had  been  uncovered  by  a  private  investigator’s  report,  ought  to  be  looked  into because the possibility was that property or money existed which ought to be used to pay the debts of the judgment debtor.

[42]     My assessment of the evidence is that even having regard to the somewhat dated material which was before the court, the position disclosed is that the judgment debtor and her husband had not been successful in business.  Their affairs seem to be inexplicably complicated, it is true.  There is a multiplicity of different entities and organisations disclosed by the evidence.   But in the end I would be surprised if a further investigation turned up concealed wealth.  The picture that I have is that the judgment   debtor   and   her   husband   probably   live   in   depressed   economic circumstances.  This would be consistent with the most recent tax return which was before the court (that for 2014) which shows gross income earned by the judgment debtor of $13,000.   It would seem to me to be unlikely that the judgment debtor would continue living in the circumstances that she does if she really had the option of spending some money that has not been disclosed.

Discussion

[43]     The position in this case is that the judgment creditor has by proving the matters  set  out  in  the  application  for  adjudication  established  a  prima  facie entitlement to an order for adjudication.  Unless one or more of the matters stated by the judgment debtor in the passage from the opposition set out above has been established, is relevant and has the effect, of tilting the balance against making an adjudication order, such an order ought to be made.

[44]     That  point  having been  reached,  it  is  necessary to  examine the issue  of whether there are any discretionary grounds why adjudication ought not to follow.

In considering the correct exercise of the jurisdiction, examination of the objectives of bankruptcy has to be undertaken.

[45]     The following matters seem to be relevant to the exercise of the discretion which the court is required to undertake in the circumstances of the present case.

[46]     It is clear that the judgment debtor has no relevant assets by which I mean property which the Official Assignee would be able to liquidate so that the debt to the judgment creditor and other creditors could be paid.   The judgment creditor attempted to locate evidence that she owned land in the Coromandel area.  I am not satisfied that she in fact owns any substantial land holding.  I consider that her claim that she only owns small “handkerchief” holdings and no other significant assets is correct.

[47]     On the other hand, there is no indication that the making of an adjudication order would cause any particular financial prejudice to the judgment debtor.   The judgment debtor by her own evidence is not, for example, involved in any business that would come to an end if she were adjudicated bankrupt.  She has earned income as a contractor which may involve her having the status of a self employed person. An order of adjudication would not necessarily bring that to an end because it is open to the Official Assignee to approve certain business activities on the part of undischarged bankrupts.

[48]     The judgment debtor does not refer to any other consequence of a kind which is sometimes encountered in opposed bankruptcy applications namely, that her credit worthiness and ability to raise loans might be adversely affected by the making of a bankruptcy order.  It is correct that both of those circumstances would occur but the question is whether in the circumstances of this case there is any particular harm over and above the generalised adverse effect that stems from the making of adjudication orders and their effect on her credit reputation and ability to raise loans. It has to be said that there is no evidence to that effect.

[49]     One public interest ground which is present in this case is that the judgment debtor acquired the liability in this case voluntarily.  The position that she now finds

herself in did not come about because of circumstances beyond her control. There is, as I noted when considering the principles relating to the exercise of the discretion not to bankrupt, a public interest in making debtors responsible for or accountable for the loss that they cause to other persons through their actions.

[50]     In  the  present  case  making  a  bankruptcy  order  would  be  conducive  to reducing the risk to the commercial community. That said, this is not a case where it is clear from the evidence that there is a particular need to protect the public interest from future commercial harm at the hands of the judgment debtor.   There is no evidence that unless adjudicated bankrupt, the judgment debtor intends to embark upon commercial activities which might pose a risk to the wider community.  She has however in the past been involved in a property development scheme and, in association with her husband, taken part in entrepreneurial-type activity without success.   I would not exclude the possibility of her doing so again in the future. That factor in conjunction with her decision to involve the judgment creditor in expensive litigation in the ERA and Employment Court in this case are suggestive of risk to the public and a corresponding necessity to protect  the public.  I should emphasise that the entitlement of the judgment debtor to access the courts is not in issue.  But having the ability to do so does not, on its own, mean that it is a wise or justified  decision  for  her  to  avail  herself  of  that  right.    In  fact,  for  a  party to commence proceedings in which she has not been legally advised, and without there being any provision available to meet an adverse costs order, was imprudent and could have reasonably been anticipated to cause financial harm to the judgment creditor.

[51]      Therefore a factor that weighs in favour of making an order of adjudication is that such an order would hold the judgment debtor accountable for her actions.

[52]     I do not agree that this is a case where an advantage of an adjudication would be that there could be an investigation of the financial affairs of the judgment debtor by a disinterested party in the form of the Official Assignee.   That some property might be uncovered by an investigation is always theoretically possible but some additional  persuasive  factor  in  my  view  is  required  before  the  court  will  be influenced by this factor in ordering an adjudication.

[53]     As I have noted, one reason that the judgment debtor has put forward for justifying the exercise of the discretion in her favour is that she alleges that the judgment  creditor  has  misconducted  itself  by circulating  details  of  harmful  and damaging material about her background in the area where she lives.  I do not accept that the conduct of the judgment creditor has been as the judgment debtor alleges.  I also question the relevance of such alleged misconduct. There may be circumstances where a creditor who conducts itself in a way which prejudices the ability of the judgment debtor to obtain employment and set about repaying the debt, ought not to be able to take advantage of misconduct of this kind.  In my view a creditor in that position would be behaving oppressively and could not expect the court to exercise its discretion to adjudicate the judgment debtor.  This principle was affirmed by the Court of Appeal in Baker v Westpac Banking Corp, which held that bankruptcy

proceedings will not be permitted to be used for oppressive purposes.6

[54]     On  its  own  the  fact  that  the  judgment  creditor  may  have  damaged  the interests of the judgment debtor by, for example, making statements damaging of the judgment debtor’s standing and reputation would not, in my view, engage the principle referred to in Baker.   When exercising the discretion to adjudicate, the court does not embark upon an evaluation of the conduct of the relevant parties generally and withhold the remedy sought because there are grounds upon which to disapprove the conduct of the judgment creditor.

[55]     However, I consider that the statement of concern on the part of the judgment debtor about the harm caused to her by the emails is exaggerated.   There is no evidence that they were widely disseminated as she claims.  There is no evidence in any  event  that  they have  led  to  her  not  being  able  to  obtain  employment  that otherwise she might reasonably have expected to come her way.   They are not a relevant factor to take into account, in my view.

[56]     My overall conclusion is as follows.  The judgment creditor has established the grounds which give the court jurisdiction to make an adjudication order.   The

judgment creditor is prima facie entitled to such an order.   While   the court may

6      Baker v Westpac Banking Corp CA212/92, 13 July 1993.

withhold such an order in its discretion, there are no convincing grounds for doing so in this case.

[57]     There will be an order, therefore, adjudicating the judgment debtor bankrupt. The judgment debtor is to pay costs to the judgment creditor on a 2B basis together

with disbursements as fixed by the Registrar.

J.P. Doogue

Associate Judge

APPENDIX A

Financial Information –
Separate Accounting Period 1 December 2007 to 19 January 2008
Further Accounting Period 20 January to 31 March 2008
Requires unbundling of accounting information held to match periods required
Expenses incurred are being calculated

Name	Type	Income 1.12.07 19.1.09	Income 20.1.08
Te Poepoia Tukino O Hauraki	v	nil	nil
Women’s Refuge Te Whariki Mana Wahine O Hauraki	v	nil	nil
Te Roopu Tautoko Rangatahi Trust	nil	nil
Coromandel Independent Living Trust	e	$2,012.41	nil
Coromandel    Area School	e	$741.58	$137.97
Wahine Ora	c	nil	nil
Keystroke Solutions	b	nil	nil
Big Girl Fashions	b	nil	nil
Web Design	b	nil	nil
Business Directory	b	nil	nil
Coromandel Peninsula Education    Centre Ltd	n	nil	nil
Lucy Ora Hamon Whanau Trust	i	nil	nil
W.O. Consultants	b	Loss being calculated	Loss being calculated
Hamon Trust 1	i	nil	Nil
Hamon Trust 2	i	nil	Nil
Hamon Trust 3	i	nil	Nil
Weston     Builders and Revonvators	b	Expenses incurred	Expenses incurred
Weston     Property Developments	b	Loss/income         being calculated	Loss/income       being calculated
Weston Trust 1	i	nil	nil
Weston Trust 2	i	nil	nil
Weston Trust 3	i	nil	nil
Weston Trust 4	i	nil	nil

Weston Trust 5	i	nil	nil
Weston Trust 6	i	nil	nil
Weston Trust 7	i	nil	nil
Weston Trust 8	i	nil	nil
Weston Trust 9	i	nil	nil
Weston Trust 10	i	nil	nil
Weston Trust 11	i	nil	nil
Weston Trust 12	i	nil	nil
Weston Trust 13	i	nil	nil
Weston Trust 14	i	nil	nil
Weston Trust 15	i	nil	nil
Weston Trust 16	i	nil	nil
Weston Trust 17	i	nil	nil
Weston Trust 18	i	nil	nil
Ngati   Whanaunga Trust	v	nil	nil
Others     may     be listed at a later date