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 Mr Holgate’s salary until the judgment debt is fully paid, with the protected earnings amount set at $660 per week.

Factual background

[7]    When Mr Holgate was examined in this Court on 16 October 2018, as is required by r 17.39, he gave the following evidence:

(a)He works as a sole practitioner and a self-employed barrister in Whangārei.

(b)He operates his business current account as a business account and also lives off it for personal use.

(c)His income for the 52 weeks between 1 July 2017 and 30 June 2018 was $60,348.26.

(d)During this period his expenses totalled $54,883.70 but $3,630 of this was put towards charitable donations.

(e)Had he not made these donations, his disposable income would have been $174.89 per week.

3      High Court Rules 2016, r 17.39(2).

(f)He charges his clients a base rate of $300 per hour.

[8]If an attachment order is made for $100 per week, Mr Holgate will be left with

$74.89 per week for miscellaneous expenditure after his expenses are paid for.

Discussion

[9]    The High Court Rules 2016 make no provision for liable parties to be heard in opposition to attachment order applications. The time for a liable party to be heard is during the examination under r 17.15. If Mr Holgate’s financial situation has changed, he is able to apply to have the order varied under r 17.39. That may seem to be an impractical outcome but, in the absence of agreement between the parties, I am not prepared to impose on the entitled party the cost of a further hearing not provided for in the Rules.

[10]   I am satisfied that the attachment order should be granted, subject to one qualification. That is to increase the protected earnings rate contained in the order from $660 per week to 60 percent of the liable party’s net earnings. That was the approach recently taken by Andrew AJ in Re Greer, ex parte Klavenes, where the Associate Judge adopted the approach provided for in s 157(6) of the District Court Act 2016.4 I endorse it. Based on Mr Holgate’s net earnings between 1 July 2017 and 30 June 2018, I calculate the protected earnings rate to be $696.32 per week.

[11]   By Minute dated 2 May 2019 I raised an issue of the person to whom payments under the attachment order should be made. It has been clarified that they should be made to a bank account in the names of ‘Chris and Mary Gillibrand’.

Orders

[12]   I make the following orders pursuant to r 17.33 of the High Court Rules 2016 accordingly:

TO:     ANDREW PETER HOLGATE of Whangārei, barrister:

4      Re Greer, ex parte Klavenes [2019] NZHC 256 at [7] and [8].

(a)This Court is satisfied that you are a self-employed barrister and a sole practitioner. You are both the liable party and the employer of the liable party.

(b)On 6 June 2017, in the High Court at Whangarei, judgment was given against you as the liable party for $68,049.26.

(c)On 12 June 2018, in the High Court at Whangarei, judgment was given against you as the liable party for $80,554.41.

(d)As the liable party has not paid this amount and, after examining the liable party's means, the Court makes this order.

(e)The Court orders that while this order is in force, whenever payment is made to the liable party, you must deduct from it the amount of $100.00 for each week.

(f)However, if in any week the deduction would reduce the net earnings paid to the liable party below the protected earnings rate of $696.32 per week (before tax), you must adjust the amount of the deduction so that the liable party receives the protected earnings rate.

(g)The first deduction is to be made on the payday following the date on which you receive this order. A deduction is to be made on every subsequent payday until the total amount payable shown  in  paragraph (i) below has been paid.

(h)

REDACTED

 

(h)

(i)You are not required to make deductions for more than the total amount

payable shown below:

Particulars	Amount
Judgment debt sought by this order	$165,603.67
Filing fee for Order for Examination	$400.00
Solicitor's costs for preparing application for Order for Examination (52, 2A basis 0.5)	$740.00
Solicitor's costs for Order for Examination Hearing (62, 2A basis 0.5)	$640.00
Filing fee for Attachment Order Application	$500.00
Filing fee for Issuing Attachment Order	$200.00
Solicitors costs for preparation of Attachment Order Application (52, 2A basis 0.5)	$740.00
Sealing fee for Attachment Order	$50.00
Total:	$168,873.67

...................................................

Toogood J