Farr v Miller - [2017] NZHC 3150

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2013-485-8999 [2017] NZHC 3150

UNDER the Insolvency Act 2006

BETWEEN

MICHAEL EDWARD FARR AS ASSIGNEE OF INSPECT IT 1ST LIMITED (IN LIQUIDATION) Plaintiff

AND

ROSS MILLER Defendant

On thePapers:

Counsel:

B M K Pamatatau for Plaintiff

Judgment:

15 December 2017

JUDGMENT OF CLARK J

[1] Michael Farr, as assignee of Inspect It 1st Ltd (in liq), applies without notice for leave pursuant to r 17.9(2)(c) of the High Court Rules to issue an enforcement process, namely a charging order. Mr Farr also requests leave to subsequently request the registrar to issue a sale order.

Background

[2] Inspect It 1st obtained a judgment in the Disputes Tribunal against Ross Miller on 2 July 2013 (judgment debt). Inspect It 1st Ltd was placed into liquidation on the
same day.

FARR v ROSS MILLER [2017] NZHC 3150 [15 December 2017]

[3] On 23 January 2014 Inspect It 1st applied to adjudicate Mr Miller bankrupt on the basis of the unpaid judgment debt owed by Mr Miller. On 7 July 2014
Inspect It 1st’s application was withdrawn with leave. The Court ordered costs and disbursements of $3,876.00 to be paid by Mr Miller (order for costs).

[4] On 2 March 2015, by a deed of assignment, Inspect It 1st assigned to Michael Farr the Disputes Tribunal judgment debt and order for costs. Notice of the assignment was given to Mr Miller on 20 July 2015.

[5] On 11 May 2016 in the Porirua District Court an order was made permitting

Mr Farr to issue an enforcement process against Mr Miller and to take proceedings as Inspect It 1st would have been entitled to take against Mr Miller for the unsatisfied judgment debt and costs. The order was served on Mr Miller on 20 July 2016.

[6] On 31 May 2017 Thomas J granted leave to Mr Farr to issue a charging order and subsequently to request the registrar to issue a sale order in relation to the judgment debt.

[7] Mr Farr has sworn an affidavit deposing to the changes that have taken place in the parties entitled to enforce the judgment. Mr Farr has also verified his belief
Mr Miller is beneficially entitled to an estate in fee simple (identifier WN21A/835, Lot 111 DP 48966) (the property). He annexed a certificate of title of the property which recorded a transfer of the property to Mr Miller and a Susan Miller on 26 April
1985. Two charging orders are registered on the certificate of title. The first is dated

27 September 2013 between Mr Miller and Inspect It 1st. The second is:

10820828.1 CHARGING ORDER DATED 1 JUNE 2017 BETWEEN ROSS MILLER AND MICHAEL EDWARD FARR – 15.6.2017 at 7:00 am

[8] Mr Farr now wishes to place a charging order over the property for the outstanding amount of the order for costs.

Legislative provisions

[9] By operation of r 17.9(2)(c) of the High Court Rules…

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 Farr v Miller

Details

AGLC: Farr v Miller [2017] NZHC 3150
Case: [2017] NZHC 3150
Decision Date: 15 December 2017

CaseChat Overview and Summary

In the case of Farr v Miller, Michael Edward Farr, acting as the assignee of Inspect It 1st Limited, which is in liquidation, sought leave from the High Court of New Zealand to issue a charging order against Ross Miller. This application was made without notice and under the provisions of the Insolvency Act 2006. The primary dispute revolves around the enforcement of a judgment debt and associated costs that Miller owes to Farr, stemming from a prior judgment issued by the Disputes Tribunal.

The legal issues before the court included whether Farr, as the assignee of Inspect It 1st Limited, was entitled to seek a charging order over a property owned by Miller, given the changes in the parties involved post-judgment. Additionally, the court had to determine if it was appropriate to grant the application without notice to Miller. The court also needed to assess the correctness of the amount proposed for the charging order, which included the original costs judgment, applicable interest, and the costs of the current application.

Clark J, who presided over the case, determined that Farr was indeed entitled to the requested orders. The judge found that Farr was the lawful assignee of the sealed order for costs, and Miller was indeed indebted to Farr under that order. The certificate of title confirmed Miller's interest in the property sought to be charged. The court exercised its discretion to grant the leave to issue a charging order and a subsequent sale order without notice, considering the matter routine. The judge also awarded Farr costs and disbursements for the application, totaling $5,605.91, which included the costs judgment sum, applicable interest, and the costs of the application itself.

Orders