Gillibrand v Holgate - [2019] NZHC 983

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-20

[2019] NZHC 983

BETWEEN
CHRISTIAN JOHN GILLIBRAND and MARY CAECILIA GILLIBRAND as
trustees of the CHRIS AND MARY GILLIBRAND FAMILY TRUST

Entitled Party

AND

ANDREW PETER HOLGATE

Liable Party

On the papers

Appearances:

C Patterson and MT Green for Entitled Party AP Holgate, self-represented

Judgment:

10 June 2019

Recalled:

10 June 2019

Reissued:

14 June 2019

JUDGMENT OF TOOGOOD J

This judgment was re-issued by me on 14 June 2019 at 3.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GILLIBRAND v HOLGATE [2019] NZHC 983 [14 June 2019]

Introduction

[1] On 6 June 2017, Woodhouse J entered judgment against Mr Andrew Holgate (the liable party) for $85,049.26 in favour of Christian and Mary Gillibrand acting as trustees for the Chris and Mary Gillibrand Family Trust (the entitled party).1 On 12 June 2018, a further judgment of $80,554.41 was entered against Mr Holgate in favour of the entitled party.2 The combined judgment sum amounts to $165,603.67. It appears to be undisputed that Mr Holgate has failed to pay that sum and that, accordingly, an attachment order may be made in favour of the entitled party.

[2] I have considered Mr Holgate’s memorandum dated 3 May 2019 in which he seeks to oppose the entitled party’s application for an attachment order. He says that his financial means have changed since he was examined, and that any attachment order should reflect this. Mr Holgate asks the Court to defer considering the attachment application for 10 working days.

Legal principles

[3]Rule 17.33 of the High Court Rules 2016 reads as follows:

17.33 When attachment order may be issued

(1) If the liable party has been examined under rule 17.15, the court, on the written or oral application of the entitled party, may make an attachment order at any time after judgment is sealed.

(2)An attachment order−

(a) may be made against a person who the court is satisfied is an employer of the liable party:

(b) may be made for a fixed period or until the judgment debt has been fully paid:

(c) must specify the person to whom the amounts to be deducted must be paid:

(d)must specify the protected earnings amount.

(3)Form E 3 must be used.

1 Gillibrand v Swanepoel [2017] NZHC 1209.
2 Gillibrand v Swanepoel [2018] NZHC 1376.

[4] Rule 17.31 defines the term “protected earnings amount” as “an amount specified in an attachment order below which the net earnings or benefit paid to the liable party must not be reduced”.

[5] Under r 17.39 an entitled party or a liable party may apply to a Judge at any time to vary, suspend or discharge an attachment order. The Judge may grant such an application if he or she is satisfied there is good reason to do so.3

The application

[6] The entitled party seeks an attachment order for the deduction of $100 per week from…

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.

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Details

Case: [2019] NZHC 983
Decision Date: 10 June 2019

CaseChat Overview and Summary

In the case of Gillibrand v Holgate, the High Court of New Zealand was called upon to decide whether an attachment order should be made against the liable party, Mr. Andrew Holgate, in favour of the entitled party, Christian and Mary Gillibrand, trustees for the Chris and Mary Gillibrand Family Trust. The dispute arose from two previous judgments, one for $85,049.26 entered on 6 June 2017, and another for $80,554.41 entered on 12 June 2018. The combined judgment sum was $165,603.67, which Mr. Holgate had failed to pay. The central legal issue was whether the Court should grant the entitled party's application for an attachment order to enforce the payment of the judgment debt from Mr. Holgate’s earnings. The court examined the provisions of the High Court Rules 2016 concerning attachment orders and the circumstances under which such orders could be issued, including the consideration of the protected earnings amount.

The Court found that the rules did not allow for the liable party to be heard in opposition to attachment order applications, as the appropriate time for this was during the examination under rule 17.15. If Mr. Holgate’s financial situation had changed, he could apply to have the order varied under rule 17.39. The Court concluded that the attachment order should be granted but with an adjustment to the protected earnings rate from $660 per week to 60 percent of the liable party’s net earnings, amounting to $696.32 per week based on his net earnings from the previous year. The Court ordered that deductions of $100 per week be made from Mr. Holgate’s salary until the judgment debt was fully paid, with the first deduction to occur on the payday following the issuance of the order.

The final orders included the deduction of $100 per week from Mr. Holgate's salary, adjusted to ensure his net earnings did not fall below the protected earnings rate of $696.32 per week. The total amount to be deducted included the original judgment debt, filing fees, and solicitor's costs, amounting to $168,873.67. This order was to be made to a bank account in the names of 'Chris and Mary Gillibrand'.

Orders