Float Factory Limited

[2012] NZHC 585

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-371 [2012] NZHC 585

IN THE MATTER OF     the Insolvency Act 2006

AND IN THE MATTER OF the bankruptcy of CHRIS QUIRK Judgment Debtor

BETWEEN  FLOAT FACTORY LIMITED Judgment Creditor

Hearing:         29 March 2012

(Heard at Palmerston North)

Counsel:         P.J. Drummond - Counsel for Judgment Creditor

No appearance for the Judgment Debtor

Judgment:      29 March 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           John K Fraser Law Limited, Solicitors, PO Box 935, Invercargill

FLOAT FACTORY LIMITED v C QUIRK HC PMN CIV-2011-454-371 [29 March 2012]

[1]           Before the Court is an application by the judgment creditor seeking an order to adjudicate the judgment debtor bankrupt.

[2]      The application is based upon the judgment debtor’s failure to comply with a

Bankruptcy Notice which was issued against him in about June 2011.

[3]      No application to set-aside this Bankruptcy Notice was made by the judgment debtor.

[4]      The Bankruptcy Notice was based upon a debt of some $14,920.90 which was awarded to the judgment creditor in proceedings brought in the Dispute Tribunal against the judgment debtor.   Those proceedings were disposed of with the adjudication in question on 12 April 2011.

[5]      Subsequently, on 19 December 2011 the judgment creditor applied to this Court for an order to adjudicate the judgment debtor bankrupt.  This application and supporting material was served upon the judgment debtor on 30 January 2012.

[6]      Then, on 29 February 2012, the day before the first call of this proceeding, the judgment debtor purported to file a document headed “Intention to Dispute the Applicant Creditor’s Debt”.

[7]      This matter was called before this Court the next day on 1 March 2012.  At that time I adjourned the matter and noted in a Minute I issued at the time that it was adjourned as a final adjournment to a call today 29 March 2012 and that this was to “enable the debtor to seek to set-aside or review the order on which the application stands which he says is disputed.”

[8]      The  directions  in  this  Minute  followed  on  from  that  29  February  2012 “Intention to Dispute the Applicant Creditor’s Debt”.   This was provided to the Court  together with a letter from the judgment debtor.  In addition, a message which the Court had received on the morning of 29 February 2012 was that the judgment

debtor “had a stroke this morning” and the documents in question were filed on his

behalf by his partner.

[9]      When this matter was called today, 29 March 2012 a further letter provided by the judgment debtor to this Court filed at 9.10 am this morning, 29 March 2012 was put before me.  That letter seemed to indicate that the judgment debtor had made an offer to repay only $7,200.00 of the entire debt to the judgment creditor at a rate of $300.00 per month over a period of two years.  This was to be in full settlement of the claim.  The offer was rejected by the judgment creditor.

[10]     This 29 March 2012 letter went on in the final paragraph to state “On this basis I have no option but to make application for and request a defended hearing for the above matter as soon as possible”.

[11]     All of this ignored the clear directions made by me at the last call of this matter on 1 March 2012.  As noted above these were to the effect that the judgment debtor was to have until the adjourned date today 29 March 2012 “to seek to set- aside or review the order on which the application stands which he says is disputed”.

[12]     No such application to set-aside the earlier Dispute Tribunal order or to have this reviewed in any way has been brought by the judgment debtor.  Instead it seems he has, without putting in any appearance before the Court today, simply requested in the form of another letter filed at 9.10 am this morning that this matter might be the subject of “a defended hearing”.

[13]     This is despite the fact that there appears to be nothing before the Court of any kind to indicate that the judgment debtor has any valid defence here or indeed that there is any argument of any type which may remain open to him to enable him to oppose the earlier dispute Tribunal order.

[14]     There can be no doubt here that by failing to comply with the terms of the

Bankruptcy Notice issued against him and by failing to make any application to set-

aside that Bankruptcy Notice within the time required, the judgment debtor has committed an act of bankruptcy – s 17(1) Insolvency Act 2006.

[15]     A  Certificate regarding  the outstanding debt  which  exceeds  $1,000.00  (s

13(a) Insolvency Act 2006) has been provided by the judgment creditor.  No part of the outstanding $14,920.90 debt has been paid.

[16]     No attempts have been made by the judgment debtor to set-aside the order on which this present application relies nor to put before the Court any evidence that the order was wrong or in some way improperly obtained.

[17]     That said I am satisfied here that despite the bald claims by the judgment debtor that he has some defence to the present adjudication application there is no such defence which is before the Court.

[18]     It must follow therefore that an order for adjudication should be made.

[19]     An order is  therefore  now  made  adjudicating the judgment  debtor  Chris

Quirk bankrupt.

[20]     Costs are awarded to the judgment creditor on a 2B basis together with disbursements as fixed by the Registrar.

[21]     This order is timed today, 29 March 2012 at 12.45 pm.

‘Associate Judge D.I. Gendall’