Grey District Council v Banks - [2016] NZHC 2663

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2016-418-000022 [2016] NZHC 2663

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of DOUGLAS BANKS

BETWEEN

GREY DISTRICT COUNCIL Judgment Creditor

AND

DOUGLAS BANKS Judgment Debtor

CIV-2016-418-000023

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER of the bankruptcy of CHRISTINE SANDRA BANKS

BETWEEN GREY DISTRICT COUNCIL Judgment Creditor

ANDCHRISTINE SANDRA BANKS Judgment Debtor

Hearing: 31 October 2016

Appearances:

J Shackleton for Judgment Creditor
Mr & Mrs Banks, Judgment Debtors, self-represented

Judgment:

8 November 2016

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

GREY DISTRICT COUNCIL v BANKS [2016] NZHC 2663 [8 November 2016]

[1] On 12 July 2016 the judgment creditor, Grey District Council (the Council), applied to the High Court for the issue of bankruptcy notices against Mr and Mrs Banks. In each case the Council relied on a sum said to remain owing by both Mr Banks and Mrs Banks on a final sealed judgment of the Court dated 5 November
2013.

[2] Bankruptcy notices were duly issued and served on Mr and Mrs Banks on

5 August. They then filed a document described as “Notice of Joint Interlocutory Application for Leave to Seek Relief Orders in Bankruptcy Proceedings”, and affidavits in support. The application related to both Mr and Mrs Banks, and was filed and served within the time required, 10 working days of the date of service of the bankruptcy notice.1 The Court subsequently directed that a separate application
be filed by Mrs Banks.2

[3] Mr and Mrs Banks both applied for appointment of an amicus curiae in this case. This application was declined by Associate Judge Osborne as the principles relating to setting aside of bankruptcy notices are well-settled, and the Court is in a position to apply those principles regardless of any inadequacy there may be in the identification of the relevant principles in submissions which might be filed.3

[4] Mrs Banks presented submissions not only on her behalf, but also on behalf of Mr Banks, with leave.

[5] Although Mr and Mrs Banks’ applications are each 31 pages in length, the arguments they presented concentrated on two principal issues, interpretation and application of the Local Government Official Information and Meetings Act 1987 and a submission that the Court should order that the debt relied on for issue of the bankruptcy notice, and five other debts also the subject of court judgments, should be repaid on terms acceptable to them.

[6] Before turning to these principal arguments, I refer briefly to other points made by Mrs Banks, first that the Council’s procedure in relying on only one of the

1      ANZ Bank New Zealand Ltd v Edwards [2013] NZHC 2756; Insolvency Act 2006, s 17.
2      Grey District Council v Banks HC Greymouth CIV-2016-418-000022, 25 August 2016.
3      Grey District Council v Banks HC Greymouth CIV-2016-418-000022, 7 September 2016.

judgments as a foundation for its bankruptcy notice was flawed. Mr and Mrs Banks appear to be…

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.

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Details

Case: [2016] NZHC 2663
Decision Date: 8 November 2016

CaseChat Overview and Summary

The Grey District Council sought to have Mr and Mrs Banks declared bankrupt on the basis of unpaid costs awarded by the Court. The Banks sought to have the bankruptcy notices set aside, or in the alternative, for the Court to order the debt to be paid on terms or for the proceeding to be stayed. The principal arguments advanced were that the Council had not complied with the Local Government Official Information and Meetings Act 1987 in excluding the public from a meeting of the Council to consider the Banks’ unpaid costs, and that the Court should order the debt to be repaid on terms acceptable to the Banks. The Court rejected both arguments. It found that the Council had acted within the requirements of the LGOIMA and that the Banks had not shown that the Council had acted unreasonably or unconscionably in proposing terms for repayment of the debt. The Banks’ application was dismissed and they were each found to have committed an act of bankruptcy. The Council was entitled to proceed with an application to have each of the Banks declared bankrupt. The Banks were ordered to pay the Council’s costs.

Orders