Grey District Council v Banks

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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…

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Details
Case
[2017] NZHC 1110
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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