Legal Research
Cases
Creser v Creser

Creser v Creser

Case [2014] NZHC 3267 16 December 2014

Annulment of Adjudication

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2003-485-2225 [2014] NZHC 3267

UNDER The Insolvency Act 1967

IN THE MATTER OF

The bankruptcy of Richard John Creser

BETWEEN

RICHARD JOHN CRESER Applicant (Judgment Debtor)

AND

JANINE CRESER

Respondent (Judgment Creditor)

Hearing: 11 November 2014

Counsel:

Q Haines for Applicant
No appearance for Respondent or Official Assignee

Judgment:

16 December 2014

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] Mr Creser was adjudicated bankrupt on 8 March 2004.

[2] On 8 August 2014, Mr Creser, acting on his own behalf, filed a lengthy document described as an “interlocutory application on notice”, in which he sought an order that his bankruptcy should be annulled upon the grounds that it never should have occurred. In that application, he also sought other relief, including an order that the Official Assignee refund a total of $139,343.63 in costs and disbursements. Monetary relief was also sought against Mr Creser’s two sisters, one of whom is the above named respondent.

[3] Mr Creser then retained counsel to assist him, and Mr Haines subsequently filed an amended application on Mr Creser’s behalf. The amended application seeks

RICHARD JOHN CRESER v JANINE CRESER [2014] NZHC 3267 [16 December 2014]

only an annulment of Mr Creser’s bankruptcy under s 119(1)(a) of the Insolvency

Act 1967.1

[4] Section 119 of the Insolvency Act 1967 (the 1967 Act) provides:

119 When Court may annul adjudication

(1) In any of the following cases the Court may by order, on the application of the Assignee or any person interested, annul the adjudication—

(a) Where the Court is of the opinion that the order of adjudication should not have been made:

(b) Where the Court is satisfied that the debts of the bankrupt have been fully paid or satisfied:

…

(2) If an application is made on any ground specified in paragraphs (a) to (c) of subsection (1) of this section by any person other than the Assignee, a copy of the application shall be served on the Assignee in such manner and within such time as the Court may direct.

(3) The Assignee may appear on the hearing of any application made on any ground specified in paragraphs (a) to (c) of subsection (1) of this section as if the Assignee were a party to the proceeding.

(4) If the order of annulment is made on the ground specified in paragraph (a) of subsection (1) of this section, the adjudication shall be annulled from and after the date of the adjudication.

(5) If the order of annulment is made on any ground specified in paragraphs (b) to (d) of subsection (1) of this section, the adjudication shall be annulled as from the date of the order.

(6) Where application is made to the Court to annul any order of adjudication on the ground that the order ought not to have been made by reason of a defect in form or procedure, subject to section
11 of this Act, the Court may, in addition to annulling…

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 [2014] NZHC 3267
Case: [2014] NZHC 3267
Decision Date: 16 December 2014

CaseChat Overview and Summary

The case of Creser v Creser involved an application by the bankrupt, Richard John Creser, to have his bankruptcy annulled. The respondent, Janine Creser, did not appear or participate in the proceedings. The bankrupt's application was brought under section 119(1)(a) of the Insolvency Act 1967, which allows the Court to annul an adjudication if it is of the opinion that the order should not have been made. The bankrupt's primary contention was that the bankruptcy notice issued by the respondent was deficient in three ways, which rendered the entire proceeding fatally flawed.

The Court first considered whether it had jurisdiction to hear the application for annulment after the bankrupt's automatic discharge from bankruptcy and the making of a previous annulment order. The Court assumed jurisdiction existed but noted that the impact of the bankrupt's discharge on the Court's jurisdiction to annul under section 119(1)(a) was not entirely clear.

Next, the Court addressed whether the bankrupt was entitled to make a second application for annulment under section 119(1)(a), having previously had such an application dismissed. The Court held that a bankrupt should not be permitted to make serial applications for annulment, as it would be an abuse of process and contrary to principles of finality and the requirement for a party to put all relevant arguments before the Court at one hearing.

Finally, the Court considered whether the bankrupt had shown that the adjudication order should not have been made and that the Court should exercise its discretion in favour of making an annulment order. The Court found that the bankrupt had not demonstrated that the deficiencies in the bankruptcy notice were sufficient to warrant annulment, particularly given the extreme delay in bringing the application and the fact that the issue could have been raised earlier. The Court also noted that the bankrupt had not shown that he was prejudiced by the alleged defects in the notice.

The Court dismissed the bankrupt's amended application for annulment of his bankruptcy.

Orders