Far North District Council v Pollock - [2014] NZHC 2473

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-000028 [2014] NZHC 2473

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of LESLIE GRAHAM POLLOCK

BETWEEN

FAR NORTH DISTRICT COUNCIL Judgment Creditor

AND

LESLIE GRAHAM POLLOCK Judgment Debtor

Hearing: 29 September 2014

Counsel:
Appearance:

G J A Day for the judgment creditor

LG Pollock, judgment debtor in person

Judgment:

29 September 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors: Far North Lawyers Ltd, Kerikeri

Copy to: L G Pollock, Awanui

Far North District Council v Pollock [2014] NZHC 2473 [29 September 2014]

Decision

[1] The Far North District Council has applied for an order adjudicating

Mr Pollock bankrupt. My decision is to adjourn this hearing until 24 November

2014 at 10.00 am. I adjourn it to give Mr Pollock the opportunity to pay the District

Council the debt, plus costs on this proceeding. If the debt has not been paid by 24

November 2014, I will consider adjudicating Mr Pollock bankrupt.

Reasons

[2] The Far North District Council has applied to bankrupt Mr Pollock because he did not comply with a bankruptcy notice. I will need to say something more about that bankruptcy notice.

[3] The bankruptcy notice was served on Mr Pollock on 18 March 2014. He had until 31 March 2014 to comply with the notice. He did not take any of the steps set out in the notice to comply with it. The Council has applied within three months of his committing this act of bankruptcy to have Mr Pollock adjudged bankrupt.

[4] Mr Pollock does not dispute his indebtedness to the Council. He does not dispute that he committed an act of bankruptcy, but he asks the Court in its discretion not to make an order of adjudication.

[5] Before I deal with Mr Pollock’s argument that I should not adjudicate him bankrupt, there are some technical issues to be addressed.

[6] The first relates to the bankruptcy notice that the Council served on Mr Pollock. The Council had obtained two orders for costs against Mr Pollock in the District Court at Kaitaia:

(a) for $8,477.37 in CIV-2009-029-39; (b) for $2,493.50 in CIV-2013-029-09. That is a total of $10,970.87.

[7] Judge de Ridder made the order for costs in the first proceeding when he struck out Mr Pollock’s claim against the Council seeking orders to prevent the Council selling by auction two pigs, which the Council had seized under the Impounding Act 1995. In the second proceeding, Mr Pollock sought the return of his pigs. Judge de Ridder dismissed that application, again making an order for costs in favour of the Council.

[8] The technical problem is that when the Council applied to the District Court for the issue of an evidential certificate, the District Court issued a single certificate for both orders for costs. That single certificate was made the basis for a single bankruptcy notice for separate final orders for costs.

[9] There is authority that there…

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: [2014] NZHC 2473
Decision Date: 29 September 2014

CaseChat Overview and Summary

The Far North District Council has applied to the High Court for an order to adjudicate Mr Leslie Graham Pollock bankrupt. Mr Pollock has not complied with a bankruptcy notice issued by the Council. The case was heard on 29 September 2014 by Associate Judge RM Bell, who decided to adjourn the hearing until 24 November 2014 at 10:00 am to give Mr Pollock the opportunity to pay the debt plus costs on the proceeding. If the debt has not been paid by 24 November 2014, the judge will consider adjudicating Mr Pollock bankrupt.

The legal issues in this case include whether the bankruptcy notice served on Mr Pollock was irregular due to combining two separate costs orders in one notice, and whether Mr Pollock has a viable cross-claim against the Council that could prevent him being adjudicated bankrupt. The judge found that while the bankruptcy notice was irregular, there was no prejudice to Mr Pollock and the proceeding could continue. The judge also found that Mr Pollock's grievances relating to his property going back to the 1980s were now statute barred and his allegations of forgery by the Council were not credible.

The judge adjourned the hearing to give Mr Pollock a chance to pay the debt and demonstrate his ability to pay his debts under section 37(b) of the Insolvency Act. If he does so, the Council's standing as a creditor will end and the proceeding will be dismissed. The judge noted that there was nothing in the conduct of the Council that suggested it had acted oppressively in seeking a remedy under the Insolvency Act.

Orders