Creser v Creser - [2015] NZCA 128

IN THE COURT OF APPEAL OF NEW ZEALAND

CA38/2015
[2015] NZCA 128

BETWEEN	RICHARD JOHN CRESER Appellant
AND	JANINE MICHELLE CRESER First Respondent
AND	THE OFFICIAL ASSIGNEE Second Respondent

Counsel:

Appellant in Person
No appearance for Respondents

Judgment:

(On the papers)

22 April 2015 at 11 am

JUDGMENT OF COOPER J
[Review of Registrar’s decision]

AThe time for applying to review the Registrar’s decision is extended.
BThe Registrar’s decision is confirmed.
CSecurity for costs in the sum of $5,880 is to be paid by Wednesday 20 May 2015.

____________________________________________________________________

REASONS

Mr Creser applies for a review of the Registrar’s decision of 3 March 2015 refusing his application to dispense with security for the costs of this appeal. His application is out of time and he has therefore sought to extend the time for making it.
Mr Creser’s substantive notice of appeal was filed on 29 January 2015. He alleges that Associate Judge Smith made a number of errors in dismissing Mr Creser’s application for annulment of his bankruptcy under s 119(1)(a) of the Insolvency Act 1967 (the Act).[1] Mr Creser had argued that the order of adjudication, made on 8 March 2004, should not have been made because of claimed deficiencies in the bankruptcy notice on which it was based.
[1]Creser v Creser [2014] NZHC 3267 [the substantive judgment].
Mr Creser had made a previous application for annulment of his bankruptcy, relying on s 119(1)(a), (b) and (c) of the Act, despite the fact he had already been automatically discharged under the Act. On 27 August 2007 MacKenzie J dismissed the application in so far as it relied on s 119(1)(a) and (c), but annulled the bankruptcy under s 119(1)(b) on the basis that the debts had been fully paid or satisfied.[2] Despite this, Associate Judge Smith was prepared to assume, without deciding, that there might be jurisdiction for the Court to make a further order annulling the adjudication under s 119(1)(a).[3] But he considered it was not open for Mr Creser to bring a second application, relying on grounds all of which had been available to him before the first application was made.[4] In case that conclusion was wrong, he recorded that he would not have been prepared to exercise his discretion in favour of making an annulment order because of the extreme delay that had elapsed since the order for adjudication was made.[5]
[2]Creser v Creser HC Wellington CIV-2003-485-2225, 24 August 2007. The Official Assignee accepted that was the position.
[3]The substantive judgment, above n 1, at [35].
[4]At [48].
[5]At [49]–[50].
Mr Creser’s application to the Registrar to dispense with security for costs was advanced on the basis that the respondent did not appear and was not represented at the hearing in the High Court; that Mr Creser will be represented by counsel at the hearing of the appeal and the case presented will be brief and succinct. Substantively, he claims that the grounds of appeal raise issues as to conflicting decisions of the Court…

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 Creser v Creser

Details

AGLC: Creser v Creser [2015] NZCA 128
Case: [2015] NZCA 128
Decision Date: 22 April 2015 at 11 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Richard John Creser against the decision of the Registrar to deny his application to dispense with security for costs in relation to an appeal against an earlier decision. The substantive appeal concerns the annulment of Mr. Creser's bankruptcy, which was adjudicated in 2004 and subsequently annulled in 2007. Mr. Creser, who is representing himself, alleges that the bankruptcy notice was deficient and seeks to appeal the Associate Judge's dismissal of his application for annulment. The primary issue before the Court was whether the Registrar erred in refusing Mr. Creser's application to waive the requirement for security for costs in the appeal.

The Court examined three arguments made by Mr. Creser in support of the review application. Firstly, Mr. Creser contended that the Registrar had no basis for concluding that the respondent should not be protected by security for costs. However, the Court noted that the absence of legal representation and the respondent's informal indication of a preference for security did not automatically warrant a waiver. Secondly, Mr. Creser argued that his financial situation justified waiving the security requirement, a point the Court acknowledged but found insufficient on its own to justify dispensing with security. Lastly, Mr. Creser claimed the matter involved a serious injustice and significant public interest, which the Court rejected as the issues pertained solely to Mr. Creser's personal circumstances and did not present a conflict between higher court decisions.

The Court concluded that the appeal was unlikely to succeed and did not meet the criteria for waiving security for costs, as it was neither in the public interest nor an appeal a solvent party would reasonably wish to pursue. The Court extended the time for applying for a review of the Registrar's decision but ultimately confirmed the decision that Mr. Creser must pay security for costs in the sum of $5,880 by a specified date.

Orders