Fisher v Darby

[2014] NZHC 2904

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-002492 [2014] NZHC 2904

BETWEEN

ROBERT FISHER, HELEN FISHER

AND RODNEY WILLIS as trustees of the
Mawhitipana Trust
Judgment Creditor

AND

TERENCE JOHN DARBY Judgment Debtor

Hearing:	20 November 2014
Appearances:	M Malarao for the judgment creditor Mr Darby in person the judgment debtor
Judgment:	20 November 2014

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

20.11.14 at 4:30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R FISHER, H FISHER AND R WILLIS as trustees of the Mawhitipana Trust v T J DARBY [2014] NZHC 2904 [20 November 2014]

[1]      This matter was called in the bankruptcy list upon Mr Darby’s application to set aside the bankruptcy notice and to stay or halt the adjudication proceedings. Although Mr Darby filed a setting aside application and a stay application it is clear that only the setting aside application should be considered.  The stay application is more appropriate for that time when and if an adjudication application is filed.  Until then there is no proceeding upon which the Court can consider the stay application.

Setting aside application

[2]      In  this  case  Mr  Darby  filed  his  setting  aside  application  within  the  10 working days time limit.   However he did not file an affidavit within that same timeframe.

[3]      It is clear from the authority in Re Menelink ex parte Sandco (NZ) Ltd HC Wellington CIV 2008-485-2691, 10 March 2009 that if the affidavit is late then the application will be dismissed.

[4]      It is clear from the provisions and the required Form B2 for bankruptcy notices that a judgment debtor is required to serve “a copy of the application and supporting affidavit on the judgment creditors”.

[5]      Although Mr Darby set out his purported grounds in his application they are not usual grounds for setting aside.  The Court accepts Mr Malarao’s submission that it appears the setting aside application is based upon alleged process irregularities in the obtaining of judgments against him in the District Court.  It is evident that those allegations may contain statements of fact which have to come before the Court in the form of an affidavit.

[6]      In the circumstances and over Mr Darby’s objections the Court held the application was a nullity.   The Court has no jurisdiction but to reject Mr Darby’s application.

[7]      Accordingly the application is dismissed.

[8]      Mr Malarao requested an order for costs.  Mr Darby requested consideration of costs to be reserved.  In the Court’s view it is appropriate to award costs on a 2B basis and the Court directs accordingly.  The Court certifies for a one-quarter day

hearing.

Associate Judge Christiansen