Hall v ASB Bank Limited HC Auckland CIV 2011-404-2331

[2011] NZHC 1708

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-2331

IN THE MATTER OF     the Insolvency Act 2006

AND IN THE MATTER OF the bankruptcy of JG Hall

BETWEEN  JAMES GORDON HALL Judgment Debtor

ANDASB BANK LIMITED Judgment Creditor

Hearing:         30 November 2011

Appearances: KJL Scott for judgment creditor

JG Hall, judgment debtor in person

Judgment:      30 November 2011 at 10:12 AM

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for adjudication order]

Solicitors:           Buddle Findlay, PO Box 2694, Wellington

And To:             JG Hall, 20 Tohunga Crescent, Parnell, Auckland

HALL V ASB BANK LIMITED HC AK CIV 2011-404-2331 30 November 2011

[1]      The judgment creditor applies for an order adjudicating James Gordon Hall a bankrupt.   The judgment creditor obtained judgment against Mr Hall in the High Court at Auckland for $550,765.57, including interest and costs, on 8 April 2011. The judgment creditor requested a bankruptcy notice be issued. A bankruptcy notice was served on Mr Hall’s lawyer in accordance with an order for substituted service. He did not comply with the bankruptcy notice.  That resulted in an act of bankruptcy occurring.

[2]      The judgment creditor filed an application for an adjudication order.  It was first called on 15 September 2011.  Associate Judge Bell gave directions which are recorded in his minute as follows:

[1]       A notice of opposition to adjudication has been filed late. The notice of opposition shows grounds arguing that the discretion ought not to be exercised against Mr Hall.   There is no dispute as to the indebtedness or as to the act of bankruptcy.

[2]       While the creditor opposes the matter being put off, justice requires that the court consider the grounds set out by Mr Hall in his notice of opposition and whether there should be an order for adjudication.

[3]       The matter will be heard at 10:00am on 30 November 2011.  I give these directions:

(a)       Mr Hall is to file and serve any affidavits in opposition to the application no later than Friday, 30 September 2011.

(b)      The creditor may file any affidavits in reply no later than 21

October 2011;

(c)       The debtor is arguing that the discretion ought not to be exercised against him and he therefore has the burden of argument.  His submissions should go first, and the creditor should follow.  Mr Hall’s synopsis of submissions, casebook and bundle of authorities are to be filed and served by 16

November 2011.

(d)      The creditor’s submissions and bundle of authorities are to

be filed and served by 23 November 2011.

[3]      Memoranda were subsequently filed resulting in Associate Judge Bell issuing a further minute of 15 November 2011 as follows:

[1]      This  opposed  application  for  adjudication  is  to  be  heard  on  30

November 2011.

[2]       On 15 September 2011 I gave directions which required Mr Hall to file and serve any affidavits in opposition by 30 September 2011 and gave the creditor till 21 October 2011 to file any affidavits in reply. I also gave directions for the filing of submissions and casebooks.

[3]       On 7 October 2011 Mr Hall filed a memorandum advising that his lawyer was Brian Fox.   On 1 November 2011 Mr Hall filed a memorandum advising that  he is now representing himself.   Mr Hall’s explanation for not filing any steps is that he has had health treatment and that he understood that Mr Fox was attending to matters.  That last part does not make sense, given that Mr Hall is now representing himself.

[4]      The bank’s application for adjudication remains set for hearing on 30

November 2011.  Although he has not filed any evidence so far, Mr Hall is given the opportunity to file evidence in opposition to the application.  His evidence is to be by way of sworn affidavits. Those affidavits are to be filed in Court and served on the Bank’s lawyers by Friday, 18 November 2011.

[5]      If Mr Hall files and serves affidavits by 18 November 2011, the

Bank may file any affidavits in reply by 25 November 2011.

[6]      If Mr Hall does not file and serve any affidavits by 18 November

2011, Mr Hall will not be permitted to file any affidavits later than that date, and the bank will not be required to file any affidavits in

reply.  Whether or not Mr Hall files any affidavits in opposition, the case  remains  set  down  for  hearing  of  the  application  on  30

November 2011.

[4]      No affidavits in opposition were filed by Mr Hall.  The result is that there is no evidence to support the matters raised in the notice of opposition.   Mr Hall appeared before me today and advised that a third party would pursue the third party’s claim against the Bank.  I emphasise that issues involving other parties not before the court are not matters, on the evidence before me, that I can take into account today.

[5]     The jurisdictional requirements which must be met before an order of adjudication is made are contained in ss 13 and 36 of the Insolvency Act 2006 as follows:

13     When creditor may apply for debtor's adjudication

A creditor may apply for a debtor to be adjudicated bankrupt if—

(a)     the debtor owes the creditor $1,000 or more or, if 2 or more creditors join in the

application,  the  debtor  owes  a  total  of  $1,000  or  more  to  those  creditors between them; and

(b)     the debtor has committed an act of bankruptcy within the period of 3 months before the filing of the application; and

(c)     the debt is a certain amount; and

(d)     the debt is payable either immediately or at a date in the future that is certain.

…

36       Court may adjudicate debtor bankrupt

The  Court  may,  at  its  discretion,  adjudicate  the  debtor  bankrupt  if  the creditor has established the requirements set out in section 13.

[6]      The jurisdictional requirements are met in this case.   I must now consider s 37 of the Insolvency Act 2006 which states:

37     Court may refuse adjudication

The Court may, at its discretion, refuse to adjudicate the debtor bankrupt if—

(a)     the applicant creditor has not established the requirements set out in section 13;

or

(b)     the debtor is able to pay his or her debts; or

(c)     it is just and equitable that the Court does not make an order of adjudication; or

(d)     for any other reason an order of adjudication should not be made.

[7]      I have been provided with no evidence which justifies the court not making an order of adjudication.   In short, there is no reason to exercise the discretion against adjudication.

[8]      Accordingly,  I  make  an  order  that  James  Gordon  Hall  is  adjudicated bankrupt.

Costs

[9]      Costs based on Category 2 Band B are order, together with disbursements as fixed by the Registrar.

This order is timed at 10:12am.