Dennis v Goode - [2023] NZHC 1883

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000593

[2023] NZHC 1883

IN THE MATTER of the bankruptcy of Bevan John Goode

BETWEEN

PETER RAYMOND DENNIS, PAUL STUART GOOBY and

DEIRDRE McNABB, as executors of the Estate of PHYLLIS LORRAINE FRANCES DENNIS

Judgment Creditors

AND

BEVAN JOHN GOODE

Judgment Debtor

Hearing: 17 July 2023

Appearances:

H M Cassin for Judgment Creditors

Mr Goode - Judgment Debtor in person

Judgment:

19 July 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

DENNIS v GOODE [2023] NZHC 1883 [19 July 2023]

[1]On 16 July 2018 Judge Neave entered judgment against Mr Goode for

$16,658.19 plus costs of $6,780.00 and disbursements of $1,043.00. On 9 December 2022 the judgment creditors obtained a bankruptcy notice against Mr Goode, which was served on 14 March 2023 pursuant to orders for substituted service. Under the terms of the substituted service order, service was treated as being complete three working days after service, being 17 March 2023.

[2]The bankruptcy notice contains the following advice:

If you consider you have a counterclaim, set-off, or cross-demand against the judgment creditor that comes within paragraph 1.3, or you wish to seek the court’s approval of terms of payment, you must, within 10 working days from the date of receiving this notice, apply to the High Court. Your application must be supported by affidavit.

You must, within the same time, also serve a copy of the application and supporting affidavit on the judgment creditor.

[3] On 24 March 2023, Mr Goode filed an application to set aside the bankruptcy notice. The evidence is that Mr Goode did not serve his application until 4 April 2023, when he personally delivered the application to the reception of the creditors’ solicitor. There is no real challenge to the evidence as to when the application was served.

[4] Mr Goode did not file an affidavit in support of the application and none was served with the application – he has since filed submissions that cover his view of events but this is not sworn evidence.

[5] The application to set aside the bankruptcy notice is opposed on a number of grounds including that it was served out of time — the bankruptcy notice expired after 10 working days on 31 March 2023, taking into account the three working days stated above before service was complete. Accordingly, service took place after the expiry of the bankruptcy notice.

[6] On 28 April 2023 Associate Judge Paulsen issued a Minute, noting that: “The judgment creditors argue that Mr Goode’s application is out of time and must necessarily fail.”

[7] The Judge recommended that Mr Goode take legal advice. Mr Goode has not done so.

[8] “It is well-established that the court has no discretionary power to extend the time for complying with a bankruptcy notice, nor does the court have any discretionary power to extend the time for applying to set aside the bankruptcy notice”.1

[9] It is also well-established that an…

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: [2023] NZHC 1883
Decision Date: 19 July 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the matter of the bankruptcy of Bevan John Goode was heard, involving Peter Raymond Dennis, Paul Stuart Goob, and Deirdre McNabb, as executors of the Estate of Phyllis Lorraine Frances Dennis, as judgment creditors, and Bevan John Goode, the judgment debtor. The primary issue before the court was whether the bankruptcy notice served on Mr Goode could be set aside due to late filing and service of his application to challenge it. Additionally, the court considered Mr Goode's defence that the judgment debt had been compromised and paid, at least partially.

Associate Judge Lester held that the court lacks the discretionary power to extend the time for applying to set aside a bankruptcy notice. The application must be filed and served within 10 working days of receiving the bankruptcy notice. In this case, Mr Goode filed his application on 24 March 2023, but served it on 4 April 2023, well after the 10 working day period had expired. Consequently, the application was ineffective as a challenge to the bankruptcy notice. Furthermore, Mr Goode's application was not supported by an affidavit, which is a mandatory requirement under the High Court Rules 2016. As a result, the application to set aside the bankruptcy notice was dismissed, and an act of bankruptcy occurred on 31 March 2023.

Associate Judge Lester also directed Mr Goode to file a comprehensive affidavit addressing his primary defence that the judgment debt was compromised and paid, at least in part. Mr Goode must file and serve this affidavit by 7 August 2023, with the creditors having until 21 August 2023 to file a reply. A hearing to determine Mr Goode's defence to the adjudication application is scheduled for 18 September 2023. Mr Goode is required to file his written submissions by 4 September 2023, and the creditors by 11 September 2023.

The court's final orders were that Mr Goode's application to set aside the bankruptcy notice be dismissed, with costs reserved. Mr Goode is required to file a comprehensive affidavit outlining the details of the compromise he claims he reached with Mr Peter Dennis by 7 August 2023, and a hearing to determine his defence to the adjudication application is scheduled for 18 September 2023.

Orders