Finance Now Limited v Fesuiai

[2013] NZHC 1153

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-62 [2013] NZHC 1153

IN THE MATTER OF     the Insolvency Act 2006

AND

IN THE MATTER OF     the bankruptcy of LOMITUSI FESUIAI Judgment Debtor

BETWEEN  FINANCE NOW LIMITED Judgment Creditor

CIV-2013-485-61 [2013] NZHC 1154

AND

IN THE MATTER OF      the Insolvency Act 2006

AND

IN THE MATTER OF      the bankruptcy of TERESA FESUIAI Judgment Debtor

BETWEEN  FINANCE NOW LIMITED Judgment Creditor

Hearing:         20 May 2013

(Heard at Wellington) Judgment:  20 May 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Buddle Findlay, Solicitors, PO Box 322, Christchurch

FINANCE NOW LIMITED V L & T FESUIAI HC WN CIV-2013-485-62 [20 May 2013]

[1]      Before  the  Court  are  applications  by  the  judgment  creditor  to  have  the judgment debtor in each of these cases adjudicated bankrupt.

[2]      Mr Bell appeared as counsel for the judgment creditor.  The judgment debtors in each case Mrs Teresa Fesuiai and Mr Lomitusi Fesuiai appeared in person before me.

[3]      Mr and Mrs Fesuiai explained to the Court and provided a detailed statement of their financial position and the predicament in which they have found themselves.

[4]      They state that other than a debt owing to their bank, the ANZ Bank over their house property the only other debts they have are to the judgment creditor, Finance Now Limited, and another finance company, Southern Receivables Limited which I am told has a second mortgage over their house property.

[5]      They have explained in  detail the background  to those finance company debts.  It does seem that substantial payments have been made in each case to the finance companies but no doubt, as a result of the terms entered into by the judgment debtors in each case, there are still significant amounts outstanding to each of the finance companies including the present judgment creditor.

[6]      Notwithstanding these matters, the judgment debtors explained to the Court today that they have placed their house property on the market for sale they having signed a Listing Authority with Leaders Real Estate on 16 April 2013 last.

[7]      The judgment debtors assure the Court that with an orderly sale of their house property they expect to be in a position to repay the first mortgage to their bank together with all amounts outstanding to the finance companies including the debt to the present judgment creditor.

[8]      As a result, the judgment debtors request an adjournment of both these proceedings for a period of three months to allow time for the sale of their house to be undertaken.

[9]      They assure the Court that at present they are simply employed on wages and are not incurring additional debts.

[10]     What   does   seem   apparent   here,   is   that   the   judgment   debtors,   who acknowledge these debts owing to the finance companies and the judgment creditor in particular, do intend to repay what is owing from the sale proceeds of their home.

[11]     It may be that the current debt to Finance Now Limited which is unsecured might be in some way be secured  by way of a third mortgage over the house property, which would give the judgment creditor some comfort concerning ultimate repayment.   The Court urges the parties to have discussions with respect to that particular possibility.

[12]     At present, however, I am of the view that the judgment debtors should be given some additional time to endeavour to sell their house property and to repay the debts in question. And, I note too this is a first call of this matter.

[13]     For these reasons these matters adjourned to a call at 10.00 am on 12 August

2013. This order relates to both matters 2013-485-61 and 62.

[14]     In the meantime costs for the appearances today are reserved.

‘Associate Judge D.I. Gendall’