De Vries v Bartercard Exchange Limited - [2017] NZHC 1851

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-428 [2017] NZHC 1851

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of
Anthony Harry de Vries

BETWEEN

ANTHONY HARRY DE VRIES Applicant/Debtor

AND

BARTERCARD EXCHANGE LIMITED Respondent/Creditor

On the papers
Submissions 20 February 2017, 18 and 27 April 2017,

2 May 2017, 6 and 28 July 2017, 1 August 2017

Judgment:

4 August 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

Introduction

[1] Mr de Vries asks me to recuse myself from hearing an application to adjudicate him bankrupt which is scheduled for 10 August 2017. His application alleges bias on my part, and follows a complaint made to the Judicial Conduct Commissioner.

[2] Bartercard Exchange Limited (Bartercard) wishes to proceed with its application to adjudicate Mr de Vries bankrupt, and it opposes the recusal
application.

DE VRIES v BARTERCARD EXCHANGE LIMITED [2017] NZHC 1851 [4 August 2017]

Background

[3] The history of this matter is set out in my previous judgments and there is no need to give more than an overview.1

[4] Bartercard had obtained two judgments against Mr de Vries in the Hutt Valley District Court in September 2011. One of them was for the sum of $179,772.42 (the principal judgment) and the other was for the sum of $170,303.56. A bankruptcy notice (the first bankruptcy notice) was issued in respect of the principal judgment.

[5] On 30 September 2015, the first bankruptcy notice was served on Mr de Vries. Mr de Vries did not pay or apply to set aside the first bankruptcy notice, and Bartercard filed an application for an order for adjudication on
5 November 2015. Mr de Vries opposed that application.

[6] On 15 April 2016, I issued a judgment dismissing the application to adjudicate Mr de Vries bankrupt, on the grounds that the amount claimed in the first bankruptcy notice was overstated and there was insufficient evidence to determine the exact amount of the overstatement (April 2016 Judgment). I made it clear that nothing prevented Bartercard serving a second bankruptcy notice with the correct amount stated.

[7] On 5 July 2016 Bartercard duly served a second bankruptcy notice (the second bankruptcy notice) on Mr de Vries. On 5 September 2016 Mr de Vries applied to set aside that bankruptcy notice. I dismissed his application in a judgment delivered on 30 November 2016 (November 2016 Judgment).

[8] In the meantime, Mr de Vries had filed an application to set aside the 2011 judgments against him in the District Court. On 5 December 2016, Judge Tompkins dismissed that application.2 Judge Tompkins considered Mr de Vries had failed on
the required grounds of (1) establishing a substantial ground of defence,

1 Bartercard Exchange Ltd, ex parte de Vries [2016] NZHC 703 [April 2016 Judgment] and
De Vries v Bartercard Exchange Ltd [2016] NZHC 2874 [November 2016 Judgment].
2 De Vries v Bartercard New Zealand Limited [2016] NZDC 26160.

(2) reasonably explaining the delay in applying to set the judgments aside and (3) satisfying the…

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.

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Details

Case: [2017] NZHC 1851
Decision Date: 4 August 2017

CaseChat Overview and Summary

The case of De Vries v Bartercard Exchange Limited involves an application by Mr. de Vries to have the Associate Judge recuse himself from presiding over a bankruptcy adjudication application filed by Bartercard Exchange Limited. The Associate Judge dismissed the application for recusal. Mr. de Vries had raised several grounds for his application, including that the Associate Judge had previously ruled against him in a related case, that Bartercard had deliberately deceived all parties, and that the Associate Judge had breached his privacy by mentioning his past employment at the ANZ Bank. The Associate Judge addressed each of these grounds in turn, finding that they did not provide sufficient evidence of bias or the appearance of bias to warrant his recusal. The court held that a judge should only recuse themselves if there is a real possibility that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question they are required to decide. The Associate Judge concluded that none of Mr. de Vries' grounds for recusal met this threshold, and dismissed the application.

Orders