Croad v Rabson

[2013] NZHC 360

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2437 [2013] NZHC 360

IN THE MATTER OF     the Insolvency Act 2006

AND

INTHE MATTER OF     the Bankruptcy of MALCOLM EDWARD RABSON

BETWEEN  ANDREW CROAD AND CHRISTINE MARGARET DUNPHY (AS LIQUIDATORS OF DOUBLE ZERO HOLDINGS LIMITED AND AS LIQUIDATORS OF VISION LIMITED) Judgment Creditors

ANDMALCOLM EDWARD RABSON Judgment Debtor

Hearing:         On the papers

Judgment:      28 February 2013

JUDGMENT OF GODDARD J

[as to recall and application to stay Judgment]

This judgment was delivered by me on 28 February 2013 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      McMahon Butterworth Thompson, PO Box 106073, Auckland

Copy To:       M E Rabson, C/- 173 Wellington Street, Paekakariki, Wellington

CROAD & DUNPHY V RABSON HC WN CIV-2011-485-2437 [28 February 2013]

[1]      In my judgment delivered on 18 February 2013 I made the following orders:

(a)The  Court’s  previous  order  of  12  June,  halting  the  applicants’ adjudication proceeding against Mr Rabson, pending his appeal to the Court of Appeal is lifted;

(b)The adjudication proceeding is adjourned to Monday 4 March 2013, subject to the condition that Mr Rabson pay the sum of $91,309.21 into Court no later than 3 pm on Thursday 28 February 2013.  Such sum is to be held by the Registrar as security for Mr Rabson’s indebtedness   to   the   applicants   pending   determination   of   his application to the Supreme Court for leave to appeal against the judgment of the Court of Appeal; and

(c)      The respondent is to pay the applicants’ costs of this application.

Application for recall

[2]      Subsequently,  on  20  February  2013,  the  judgment  creditors  filed  an application to have my judgment recalled on two grounds.  First, because the costs order made omitted to identify the appropriate basis on which costs were awarded. Second, in reliance on r 11.9 of the High Court Rules, on the basis that the Supreme Court  has  since  dismissed  Mr  Rabson’s  application  for  leave  to  appeal  to  the Supreme Court.   Mr Rabson’s application for leave was declined on 19 February

2013, with costs to the judgment creditors of $1500 plus reasonable disbursements to be fixed by the Registrar.

[3]      In relation to the first ground for recall, the judgment creditors proposed that the order I made requiring Mr Rabson to pay the sum of $91,309.21 into this Court, pending the outcome of his leave application, having since been overtaken by events, should now be substituted by the following order:

The adjudication proceeding is adjourned to  Monday 4  March 2013, to provide Mr Rabson with an opportunity to settle his indebtedness to the applicants by paying them the sum of $97,727.41 no later than 3.00 pm on Thursday 28 February 2013.

[4]      The sum claimed in this proposed new substituted order includes, by way of update from the figure of $91,309.21:

(a)$4,676.50 being costs on a 2B basis for preparing and filing this interlocutory application and accompanying written submissions;

(b)$241.70  being  the  Ministry  of  Justice  filing  fee  relating  to  this interlocutory application; and

(c)$1500  being  the  award  of  costs  by  the  Supreme  Court  to  the respondent (the present applicants).

[5]      It seems appropriate to recall my judgment for the purpose of making such an order.

Application for stay

[6]      Subsequent to the application for recall being filed, on 27 February 2013, Mr Rabson applied for a stay of my judgment of 18 February, pending an appeal by him against that judgment to the Court of Appeal.  In support, Mr Rabson submits that failure to grant a stay will likely result in his appeal being rendered nugatory; submits there is no threat of injury to the respondents if a stay is ordered; submits the bona fides of his appeal are evident; that granting a stay is not expected to have any adverse effect on third parties; and that it is in the overall interests of justice to grant a stay.

[7]      A stay, if granted, would however have the effect of indefinitely adjourning the  judgment  creditors’ adjudication  application,  currently  listed  for  calling  on Monday 4 March 2013.

[8]      In response to Mr Rabson’s application for a stay of judgment, the judgment creditors  have  advised the  Court  that  they  have  no  objection  to  adjourning  the bankruptcy adjudication for one week to 11 March 2013 but oppose any further adjournment.   That, in my view, is a reasonable approach to take.   Any further

adjournment application will have to be made to the Associate Judge on 11 March

2013.

Conclusion

[9]      The following orders are made in substitution of the orders previously made in my judgment of 18 February 2013:

(a)The adjudication proceeding is adjourned to Monday 11 March 2013, to provide Mr Rabson with an opportunity to settle his indebtedness to the judgment creditors by paying to them the sum of $97,727.41 no later than 3 pm on Thursday 7 March 2013.  The figure of $97,727.41 includes the following costs and disbursements:

(i)$4,676.50 being costs on a 2B basis for preparing and filing this interlocutory application and accompanying written submissions;

(ii)      $241.70 being the Ministry of Justice filing fee relating to this interlocutory application; and

(iii)     $1500 being the award of costs by the Supreme Court to the respondent (the present applicants).

Goddard J