Grey District Council v Banks - [2017] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2016-418-000022 [2017] NZHC 1110

BETWEEN
GREY DISTRICT COUNCIL

Judgment Creditor

AND

DOUGLAS BANKS Judgment Debtor

AND

CHRISTINE SANDRA BANKS Judgment Debtor

Hearing: 25 May 2017 (On the papers)

Appearances

J Shackleton for Judgment Creditor
Judgment Debtors - in person

Judgment:

26 May 2017

JUDGMENT OF DUNNINGHAM J

Introduction

[1] Douglas and Christine Banks were adjudicated bankrupt by Associate Judge Matthews. They then applied for a stay of adjudication until their appeal against the adjudication judgment had been heard. This was refused.

[2] Mr and Mrs Banks now seek a review of the refusal to stay. Despite being offered an oral hearing, they confirmed a hearing was not required and they were content for me to determine their application on the papers.

[3] For the reasons outlined below, this application for review is unsuccessful.

GREY DISTRICT COUNCIL v BANKS [2017] NZHC 1110 [26 May 2017]

History of the matter

[4] The Grey District Council has a judgment debt against both Mr and Mrs Banks. The Council issued bankruptcy notices against them, but neither notice was met. Consequently, the Council filed an application to have Mr and Mrs Banks adjudicated bankrupt. On 3 February 2017, Associate Judge Matthews granted the application.1 However, taking into account the efforts Mr and Mrs Banks were making to arrange for family members to buy their house and thus make available funds to meet their debt, the Associate Judge gave them until 17 February to make full payment of their entire debt to the Council.
If they could not, the bankruptcy orders made would take effect.

[5] On 17 February, Associate Judge Matthews dismissed an application from Mr and Mrs Banks to stay adjudication.2 The Associate Judge noted that Mr and Mrs Banks had both filed an appeal to the Court of Appeal against his
3 February decision. The Court of Appeal registry had not yet finally accepted it for filing, so the Associate Judge considered that this meant s 416 Insolvency Act 2006 did not apply.3 However, having satisfied himself that the Court of Appeal registry had received the appeal, he proceeded on the basis that there was an appeal in place and considered the Banks’ application in that light.

[6] In their application, Mr and Mrs Banks pointed out that they had paid the sum of $44,321.22. This covered the Council’s claim as contained within the bankruptcy notices, the application for adjudication, the summons to debtors attached to the notices and a memorandum filed by the Council. However, it did not cover their full debt to the Council, which included amounts owing under costs judgments. This was calculated by the Council to be $92,084.22 as at 7 February 2017 when it wrote to Mrs Banks.

[7] Associate Judge Matthews noted that Mr and Mrs Banks did not give any specific reason for seeking a stay of the adjudication. He therefore inferred that their
reason was that they believed the orders were unsound and should not take…

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.

Keep reading for free

Create a free CaseChat account to read Grey District Council v Banks and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 1110
Decision Date: 26 May 2017

CaseChat Overview and Summary

The High Court was asked to review a decision made by an Associate Judge, who had refused to stay an adjudication of bankruptcy against Douglas and Christine Banks. The Grey District Council had a judgment debt against the Banks and issued bankruptcy notices against them. When these were not met, the Council applied for adjudication of bankruptcy. The Associate Judge granted the application but gave the Banks time to pay off their debt. When they failed to do so, the Associate Judge dismissed their application for a stay of adjudication and they appealed this decision to the High Court.

The legal issues the court had to decide were whether the Associate Judge had correctly exercised his discretion in refusing to stay the adjudication of bankruptcy, and whether the Banks had demonstrated that the Associate Judge’s decision was incorrect. The court had to consider the factors relevant to the decision to stay adjudication, including the novelty and importance of the questions involved, the effect on third parties, the balance of convenience, and the strength of the appeal. The court also had to consider whether the Banks had demonstrated that the Associate Judge’s decision was incorrect, and whether the decision involved the exercise of a discretion.

The court found that the Associate Judge had correctly exercised his discretion in refusing to stay the adjudication of bankruptcy. The court found that the Banks had not demonstrated that the Associate Judge’s decision was incorrect, and that he had regard to all relevant considerations, correctly applied the relevant principles of law and made no unsupportable findings of fact. The court found that the balance of convenience was weighed towards the respondent and against a stay, and that the appeal was unlikely to succeed. The court also found that the other issues raised by the Banks went to the merits of the adjudication order and were not relevant to the stay application. The application for review was dismissed.

Orders