Dental Council of New Zealand v Gibson HC Auckland CIV 2010-404-230

[2010] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-230

BETWEEN  DENTAL COUNCIL OF NEW ZEALAND

Judgment Creditor/Respondent

AND  NEVILLE JAMES GIBSON Judgment Debtor/Applicant

Hearing:         12 November 2010

Counsel:         M L Broad for Judgment Creditor/Respondent

N Gibson (In Person) Judgment Debtor/Applicant

Judgment:      12 November 2010

ORAL JUDGMENT OF MILLER J

[1]      Before me are a suite of applications and cross-applications.

a)       First is an application for adjudication in bankruptcy by the Dental Council against Mr Gibson.   That has been set down for hearing today.

b)Second  is  Mr  Gibson’s  application  for  stay  of  execution  of  the judgment of Associate Judge Bell refusing to set aside a bankruptcy notice.  In effect, that would amount to a partial stay of the substantive judgment of Wylie J under which Mr Gibson was ordered to pay a substantial sum in costs.   The substantive point is that he has an offsetting claim in damages against the Dental Council.

c)        Third  is  Mr  Gibson’s  application  for  a  review  of  the  decision  of

Associate Judge Christiansen to adjourn the stay application to be heard with the application for adjudication and for an order staying all

DENTAL COUNCIL OF NEW ZEALAND V NEVILLE GIBSON HC AK CIV 2010-404-230  12 November

2010

matters  pending  a  decision  of  the  Court  of  Appeal  on  his  appeal against the decision of Associate Judge Bell.

[2]      These applications have been overtaken, provisionally at least, by a proposal to creditors under Part 5 of the Insolvency Act 2006.  The proposal has been filed, apparently in regular form, and creditors met on 8 November.   It appears that the requisite majority approved the application.  The present creditor is not one of them. It had notice however, and appeared as did Minter Ellison Rudd Watts, to oppose the proposal.

[3]      Where such a proposal has been filed in Court and approved by the requisite majority of creditors and further approved by the Court, all creditors are bound by it and a creditor cannot pursue adjudication without the Court’s leave under s 335.

[4]      An application has yet to be made under s 333 of the Act for the Court’s approval.  The trustee, Peter Whittaker of Christchurch, says that further time must be allowed so that he can file the application and his report, and send notice of the hearing to each known creditor as the legislation requires.  Mr Whittaker appeared before me today;   he  explains that he is a former chartered  accountant, now a businessman in Christchurch, and in his capacity as a consultant he has agreed to act on this proposal.

[5]      In  the  meantime,  the  creditor  can  proceed  without  leave  and  the  Dental Council wishes to do so.   Mr Broad expresses the considerable frustration of the Dental Council at the continued adjournments, often attributable to Mr Gibson’s attempts to review straightforward interlocutory decisions.  He maintains that there is no prospect of the Court approving the proposal.

[6]      The question then is whether I ought to adjourn the matters before me today to allow the trustee to present the proposal for approval.  I am satisfied that I should do so:   the proposal has apparently been approved by the requisite majority of creditors;    they  have  only  just  done  so;    they  are  entitled  to  be  heard  on  the application  for  approval.     The  application  for  approval  can  be  heard  on  24

November, and the Court may reject the proposal if it is unreasonable, unfair to the

general body of creditors or otherwise inexpedient.  In short, the Dental Council will have its opportunity to argue that adjudication is the better alternative.

[7]      There will be directions as follows:

a)        All of the applications before me today are adjourned to 24 November

2010.  I envisage that if the application for approval of the creditors’ proposal fails, the Court may make an order of adjudication against Mr Gibson;

b)        Mr Whittaker is to file his trustee’s report today;

c)Mr Whittaker is to file the application under s 333 on Monday and serve it without delay on Kensington Swan for the Dental Council and Minter Ellison Rudd Watts.  I observe that it must also be served and without delay on all known creditors;

d)The papers of the Dental Council and any other opposing creditor are to be filed and served by the 19th of November;

e)        The application will be heard on the 24th of November along with the other outstanding applications.

[8]      I record that there was a discussion before me about Mr Gibson’s address for service.   He has given a physical address in Melbourne and an e-mail address [email protected].   He is however, required under the Rules to give a physical address for service in New Zealand.  That address for service is 11A Hobson Lane, Epsom.

Miller J

Solicitors:

Kensington Swan, Auckland

Minter Ellison Rudd Watts, Auckland

Copy to:

N J Gibson, 11A Hobson Lane, Epsom.