Goodwin v Copland - [2014] NZCA 568

IN THE COURT OF APPEAL OF NEW ZEALAND

CA195/2013
[2014] NZCA 568

BETWEEN	WAYNE ERNEST GOODWIN Appellant
AND	BRIAN STEWART COPLAND Respondent

Hearing:	10 November 2014
Court:	Wild, Simon France and Asher JJ
Counsel:	A C Beck for Appellant JCD Guest for Respondent
Judgment:	27 November 2014 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant is to pay the respondent’s costs as for a standard appeal on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Wild J)

Introduction and issues

On 28 March 2013, in the High Court at Dunedin, Associate Judge Matthews adjudicated Mr Goodwin bankrupt.[1]
[1]Goodwin v Copland [2013] NZHC 652 [judgment under appeal].
The six grounds on which Mr Goodwin appeals against that adjudication can be distilled to three:
(a)Substituted service:     Did the Associate Judge err in holding there is jurisdiction to order substituted service of a bankruptcy notice?
(b)Act of bankruptcy:      Was there error on the Associate Judge’s part in holding Mr Goodwin had committed an act of bankruptcy in terms of s 17(1) of the Insolvency Act 2006 (the Act), in that he had not complied, within the time limit specified, with a bankruptcy notice served on him?
(c)Discretion not to bankrupt:     The Associate Judge declined to exercise the discretion s 37 of the Insolvency Act gave him not to adjudicate Mr Goodwin bankrupt. Was this an error? The primary point here is Mr Goodwin’s assertion that he had a cross claim against Mr Copland exceeding the amount stated in the bankruptcy notice.

Background

On 1 May 2006 the parties together with Mr Goodwin’s company Corporate Capital Investment Co Ltd signed a memorandum settling a proceeding Mr Copland had brought in the High Court at Dunedin. In terms of the memorandum Mr Goodwin was to pay Mr Copland NZD30,000 by 31 August 2006 and USD465,000 by 29 September 2006.
On 11 October 2006, following default by Mr Goodwin in making either payment, the Court entered judgment upon an admission of claim held by Mr Copland under the settlement agreement.[2]
[2]Copland v Goodwin HC Dunedin CIV-2004-412-346, 11 October 2006.
On 23 July 2012 Mr Copland applied to the Court for the issue of a bankruptcy notice. He also applied ex parte for an order for substituted service of the notice and of any subsequent bankruptcy application.
Pursuant to orders made by the Court on 28 July 2012,[3] the bankruptcy notice was served on 31 July 2012 at the offices of Ross Dowling Marquet Griffin, solicitors in Dunedin, for the attention of Mr Alastair Logan. Mr Logan was a solicitor acting at the time for Mr Goodwin in another proceeding and his firm’s office was Mr Goodwin’s address for service in that proceeding.
[3]Goodwin v Copland HC Dunedin CIV-2012-412-519, 28 July 2012 (order for substituted service).
On 15 August 2012 Mr Copland applied for an order adjudicating Mr Goodwin bankrupt based on his failure to comply with…

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.

Continue reading Goodwin v Copland

Details

AGLC: Goodwin v Copland [2014] NZCA 568
Case: [2014] NZCA 568
Decision Date: 27 November 2014 at 3.30 pm

CaseChat Overview and Summary

In Goodwin v Copland, the Court of Appeal of New Zealand dismissed the appeal brought by Wayne Ernest Goodwin against the High Court's decision to adjudicate him bankrupt. Goodwin appealed on three grounds: whether there was jurisdiction to order substituted service of a bankruptcy notice, whether he had committed an act of bankruptcy, and whether the Associate Judge should have exercised his discretion not to adjudicate Goodwin bankrupt. The Court found no error in the Associate Judge's decision, upholding the adjudication of bankruptcy. The Court held that there was jurisdiction to order substituted service of a bankruptcy notice, and that Goodwin had indeed committed an act of bankruptcy by not complying with the bankruptcy notice. Furthermore, the Court found no error in the Associate Judge's exercise of discretion under s 37 of the Insolvency Act, considering Goodwin's alleged cross claim against Copland.

As a result of the dismissal of the appeal, Goodwin is to pay Copland's costs as for a standard appeal on a band A basis with usual disbursements.

Orders