General Finance Limited v Denard - [2017] NZHC 1743

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2016-454-90 [2017] NZHC 1743

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of
Deborah Cherie DeNard

BETWEEN

GENERAL FINANCE LIMITED Judgment creditor

AND

DEBORAH CHERIE DENARD Judgment debtor

Hearing: 13 July 2017

Appearances:

Ms Hojabri for the judgment creditor

Mr P Drummond for the judgment debtor (given leave to withdraw)

Ms DeNard in person

Judgment:

26 July 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] The Judgment Creditor (General Finance) applies for an order adjudicating

Ms DeNard bankrupt.

Background

[2] General Finance obtained summary judgment against Ms DeNard in the Wellington District Court on 24 February 2016, following a defended hearing in that court on 5 February 2016. Ms DeNard had signed an agreement to purchase a Wellington apartment but had failed to pay the deposit of $126,000. General Finance successfully sued her to recover the $126,000. The amount of the
judgment entered by Judge Tuohy, inclusive of interest and costs, was $134,807.73.

GENERAL FINANCE LIMITED v DENARD [2017] NZHC 1743 [26 July 2017]

[3] Ms DeNard did not appeal the judgment within the 20 working days allowed for appeals from the District Court,1 and she did not apply for a rehearing in that court. No order has been made staying the judgment or execution on it.

[4] General Finance issued a bankruptcy notice in this court on

19 September 2016. An affidavit sworn by a process server, Mr Hayden, shows that the bankruptcy notice was served on Ms DeNard on 27 October 2016.

[5] In accordance with s 17 of the Insolvency Act 2006 (the Act) and the terms of the bankruptcy notice itself,2 Ms DeNard had 10 working days from the date of service of the bankruptcy notice to apply to this court for an order setting it aside on the basis of any counterclaim, set-off, or cross-demand she considered she had.

[6] On 15 November 2016 Ms DeNard filed in the Palmerston North Registry of this court a document entitled “Interlocutory Application to Set Aside Bankruptcy Notice” (the Interlocutory Application). The Interlocutory Application was not accompanied by an affidavit, and it was filed outside the 10 working day period allowed for applying to set aside a bankruptcy notice.

[7] A copy of the Interlocutory Application was not served on General Finance within the 10 working day period.

1 High Court Rules r 20.4(2)(b).
2 Rule 24.8 of the High Court Rules requires that every bankruptcy notice is to be in form B2 of the first schedule to the High Court Rules. Form B2 contains the following notes for the assistance of the person served with the bankruptcy notice:

Procedure for counterclaiming, etc

If you consider you have a counterclaim, set-off, or cross-demand against the judgment creditor that comes within pararaph 1(c), or you wish to seek the court’s approval of terms of payment, you must, within 10 working days from the date of receiving this notice, apply to the High Court. You application must be…

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.

Keep reading for free

Create a free CaseChat account to read General Finance Limited v Denard and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 1743
Decision Date: 26 July 2017

CaseChat Overview and Summary

General Finance Limited (the Creditor) applied for an order to adjudicate Ms DeNard (the Debtor) bankrupt, on the basis that she failed to pay a debt of $134,807.73 which General Finance was owed. The Debtor had failed to file an application to set aside the bankruptcy notice within the time allowed by the Insolvency Act 2006 and the High Court Rules. The Debtor filed an interlocutory application outside of the 10 working day period allowed, but it was not accompanied by an affidavit and was not served on the Creditor. The Debtor then filed a notice of appeal, a statement of claim and an interlocutory application to set aside a bankruptcy notice, but these were not served on the Creditor and were not referred to at the previous hearings. The court considered the Debtor's personal circumstances, the merits of her proposed appeal and the fact that the Debtor had not taken any steps to progress her appeal since November 2016. The court concluded that the Debtor had not made out a case for refusing the adjudication application and that the application should proceed. The court made an order adjudicating the Debtor bankrupt.

Orders