Down Under Developments Limited v Lau - [2024] NZHC 3380

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000369

[2024] NZHC 3380

BETWEEN
DOWN UNDER DEVELOPMENTS LIMITED

Judgment Creditor

AND

EE KUOH LAU (also known as Augustine Lau)

Judgment Debtor

Hearing: 11 November 2024

Appearances:

M Singh for the Judgment Creditor Judgment Debtor in Person (via VMR)

R Parmenter for HND Holding Ltd, creditor in support M Singh for Jianzhong Zhu, creditor in support

Judgment:

15 November 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 15 November 2024 at 11.45 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Glaister Ennor, Auckland Copy to: Ee Kuoh Lau

DOWN UNDER DEVELOPMENTS LTD v LAU (also known as Augustine Lau) [2024] NZHC 3380 [15 November 2024]

Introduction

[1] The judgment creditor, Down Under Developments Ltd (DUD), sought the adjudication of the judgment debtor, Ee Kuoh (Augustine) Lau, relying on an unsatisfied bankruptcy notice based on an order for costs made by this Court.

[2] Mr Lau opposed the application on the grounds that he did not receive the bankruptcy notice or creditor’s application because he has been on remand in prison since 1 March 2024; he intended to apply to set aside the costs judgment; he had a cross-claim against DUD; and/or he was able to pay the judgment debt.

[3] Two other creditors supported DUD’s application, also relying on unsatisfied costs orders. They are HND Holding Ltd (HND Holding)1 and Jianzhong Zhu.2

[4] As the statutory criteria for bankruptcy are met, the issue was whether the Court should exercise its discretion to refuse to adjudicate Mr Lau bankrupt.

[5] After hearing submissions from Mr Singh, Mr Parmenter, and Mr Lau, I decided not to exercise the discretion to refuse to make an order. I made an order adjudicating Mr Lau bankrupt. This judgment gives my reasons.

Background

[6] Mr Lau registered a caveat against a property owned by DUD. DUD was required to apply for the caveat to be removed. The caveat was eventually removed by consent, but Associate Judge Brittain ordered Mr Lau to pay DUD’s costs. The Associate Judge’s minute dated 13 February 2024 records that:3
[2] Counsel for the applicant advises that the caveat was removed by consent, and the applicant has been able to complete its sale of the property in question.

[3] The applicant seeks costs, on the grounds that there was no basis for the respondent to lodge the caveat against the title. The affidavit evidence filed

1      Appearance in Support of Application to Adjudicate Bankrupt, dated 13 June 2024.
2      Notice of Appearance in Support of Creditor’s Application for Adjudication Order, dated 30 July 2024.
3      Down Under Developments Ltd v Lau HC Auckland CIV-2024-404-255, 13 February 2024 (Minute).

in support of the application for removal of the caveat confirms that Mr Lau had no caveatable interest in the property.

[4] On that basis, I order Mr Lau to pay…

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 Down Under Developments Limited v Lau

Details

AGLC: Down Under Developments Limited v Lau [2024] NZHC 3380
Case: [2024] NZHC 3380
Decision Date: 15 November 2024

CaseChat Overview and Summary

Down Under Developments Limited sought to adjudicate Ee Kuoh Lau, also known as Augustine Lau, bankrupt on the basis of an unsatisfied bankruptcy notice. Lau opposed the application, arguing that he had not received the notice or the creditor's application because he had been on remand in prison since 1 March 2024. He also argued that he intended to apply to set aside the costs judgment, had a cross-claim against Down Under Developments, and/or was able to pay the judgment debt. The court needed to determine if it should exercise its discretion to refuse to adjudicate Lau bankrupt. The statutory criteria for bankruptcy were met, so the court had to decide whether to exercise its discretion to refuse the order. After hearing submissions from all parties, the court decided not to exercise its discretion to refuse to make an order. The court found that the requirements of the Insolvency Act 2006 were satisfied, and Lau had not provided sufficient grounds to persuade the court that an order should not be made. The court found that Lau had not been prejudiced by not receiving the creditor's application when it was served upon him. Lau's claim that he intended to apply to set aside the costs judgment or had a genuine triable cross-claim did not present a reason for the court to refuse to adjudicate him bankrupt. The court concluded that it was in the public interest for the Official Assignee to be appointed to investigate Lau's affairs. An order was made at the conclusion of the hearing adjudicating Lau bankrupt.

Orders