Grant v Andrews

[2017] NZHC 130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1302 [2017] NZHC 130

UNDER

Part 17 of the High Court Rules

IN THE MATTER

The liquidation of NZNet Internet Services
Limited (in Liquidation)

BETWEEN

DAMIEN GRANT AND STEVEN KHOV

Entitled Parties

AND

STEPHEN ANDREWS Liable Party

Hearing:	2 February 2017
Appearances:	A Cherkashina for Entitled Parties No appearance for Liable Party
Judgment:	10 February 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

10.02.17 at  3.30 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

DAMIEN GRANT AND STEVEN KHOV v STEPHEN ANDREWS [2017] NZHC 130 [10 February 2017]

[1]      Mr Andrew was ordered to attend for examination following the making of an order pursuant to HCR 17.12 which Wylie J made on 29 November 2016.  It has been proved that Mr Andrews was served with the order so made.

[2]      The entitled parties seek an order for the arrest of Mr Andrews.

[3]      HCR 17.18 provides as follows:

17.18   Failure to comply with order for examination

(1)       A  Judge  may  make  an  arrest  order  against  an  examinee who—

(a)       fails to attend the examination; or

(b)       refuses  at  the  examination  to  take  the  oath  or to answer any question; or

(c)       fails to comply with the order for examination in any other way.

(2)      Subclause (1) is subject to subclauses (3) and (4).

(3)       An arrest order for failing to attend the examination must not be made unless the examining party has filed the affidavit required by rule 17.14.

(4)      If an arrest order is made, the Judge must direct that—

(a)       the order is suspended provided the examinee—

(i)        attends the court or any person whom the court  has  appointed  for  examination  at  a time and place specified in the order; and

(ii)      complies  with  all  the  terms  of  the  arrest order and the order for examination; and

(b)       if the examinee fails to comply with any term on which the arrest order is suspended, the examinee may be brought before a Judge so that the Judge may consider whether to commit the examinee to prison.

[4]      The question arises whether I have jurisdiction to issue a warrant for the arrest of Mr Andrews under HCR 17.18.

[5]      The issue is expressly covered by s 26I Judicature Act 1908 which is to the effect that where a person has been ordered to attend for examination an Associate Judge may make orders against that person other than an arrest order.  Therefore if the examinee does not attend his examination, it is not open to the Associate Judge to make an arrest order.

[6]      The appropriate course is to refer the matter to a High Court Judge under s

26M  of  the  Judicature Act  1908  to  make  any  orders  that  he  or  she  considers necessary and I order accordingly.

J.P. Doogue

Associate Judge