Goodwin v Copland - [2014] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND

CA195/2013
[2014] NZCA 33

BETWEEN	WAYNE ERNEST GOODWIN Appellant
AND	BRIAN STEWART COPLAND Respondent

Counsel:

A Beck for Appellant
JCD Guest for Respondent

Judgment

(On the Papers):

25 February 2014 at 2.15 pm

JUDGMENT OF MILLER J
(Review of Registrar’s decision)

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe applicant is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

Mr Goodwin has filed an appeal from a decision of Associate Judge Matthews that adjudicated him bankrupt.[1] He owes money as a judgment debtor to Mr Copland, the respondent in these proceedings and the judgment creditor.

Background

[1]Copland v Goodwin [2013] NZHC 652.

In May 2006, the parties and an associated company settled a proceeding that had been issued in the High Court at Dunedin. The terms of that settlement required Mr Goodwin to pay Mr Copland USD 495,000, 30,000 of which was for costs. The bulk of the payment was due on 29 September 2006 and the costs component a month later.
Neither payment was made so in October 2006 Mr Copland obtained a judgment in his favour ordering payment as required by the settlement agreement. With no payment forthcoming, Mr Copland on 23 July 2012 applied for the issue of a bankruptcy notice and substituted service orders. The bankruptcy notice was served by substituted means on 31 July 2012. On 15 August of that year Mr Copland applied to adjudicate Mr Goodwin bankrupt.
Mr Goodwin opposed the bankruptcy on the basis that there was an application before the High Court to set aside the judgment on which it was based. That application was dismissed by Associate Judge Osborne on 30 November 2012.[2] Following two adjournments, a defended hearing occurred on 19 March 2013. Mr Goodwin opposed the adjudication on three grounds:
(a)The bankruptcy notice was not served properly.
(b)He had a live counterclaim that was not able to be raised in the judgment ordering payment.
(c)It was an abuse of process for Mr Copland to proceed with a bankruptcy application knowing he was in breach of the agreement on which the debt was based.
[2]Copland v Goodwin [2012] NZHC 3211.
Associate Judge Matthews found that the substituted service order should not have been made as the required evidentiary foundation was not established.[3] The other two grounds failed. The Judge went on to consider whether, in his discretion, the Court should refuse to adjudicate Mr Goodwin bankrupt.[4] The Judge decided the discretion should not be exercised in Mr Goodwin’s favour.[5]
[3]At [53].
[4]Insolvency Act 2006, s 37.
[5]At [59].
Mr Goodwin filed a notice of appeal on 4 April 2013 detailing six grounds. These grounds were that the Court was wrong to hold:
(a)a bankruptcy notice was a document required to be served under the High Court Rules and that there was…

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 33
Case: [2014] NZCA 33
Decision Date: 25 February 2014 at 2.15 pm

CaseChat Overview and Summary

In the case of Goodwin v Copland, the appellant, Wayne Ernest Goodwin, appealed against the decision of Associate Judge Matthews, who adjudicated him bankrupt. The respondent, Brian Stewart Copland, was the judgment creditor owed by Goodwin. The appeal focused on the bankruptcy adjudication and the subsequent refusal of the Registrar of the Court of Appeal to dispense with security for costs in the appeal proceedings. The court was tasked with determining whether the Registrar's decision was correct and whether the appellant should be required to provide security for costs.

The legal issues before the court were whether the Registrar's decision to refuse to dispense with security for costs was justified and whether there were exceptional circumstances warranting such a waiver. The court considered the criteria for dispensing with security for costs, including whether the appeal was arguable, the importance of the issues raised, and the public interest in having them determined. The court also evaluated whether there were exceptional circumstances, such as impecuniosity or other relevant factors, that would justify dispensing with security.

The Court of Appeal found that the appeal was arguable, but the issues were not of general or public importance. The court determined that the appellant's status as an undischarged bankrupt alone was not sufficient to justify dispensing with security for costs. The court also considered the respondent's interests, noting that the security protected his potential costs if the appeal was unsuccessful. The court concluded that it would not be in the interests of justice to dispense with security for costs in this case.

The application to review the Registrar's decision refusing to dispense with security for costs was dismissed. The appellant, Wayne Ernest Goodwin, was required to pay the sum of $5,880 by way of security for costs within 20 working days of the date of the judgment.

Orders