Hallett v Williams HC Auckland CIV-2010-404-7488

[2011] NZHC 892

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7488

UNDER  the Insolvency Act 2006

IN THE MATTER OF     the bankruptcy of Joseph Gregory Hallett

BETWEEN  JOSEPH GREGORY HALLETT Judgment Debtor

ANDPETER ALDERIDGE WILLIAMS QC Judgment Creditor

Hearing:         9 August 2011

Appearances: Mr Hallett in person

H Phillips for judgment creditor

Judgment:      9 August 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors:

Mr J G Hallett, P O Box 109 624, Newmarket, Auckland – [email protected]

Short & Partners, P O Box 137-241, Auckland –  [email protected]

HALLETT V WILLIAMS HC AK CIV-2010-404-7488 9 August 2011

[1]      The creditor brought an application based upon a service of a bankruptcy notice which was in turn based upon a judgment obtained on 18 October 2010.  The judgment in fact seems to have been entered in the District Court.  The reference in the creditor’s application to a High Court judgment is an irregularity which does not vitiate the proceedings.  The proceedings appear to not reflect the process by which a judgment is obtained in the District Court and then the certificate of judgment of that Court is lodged in the High Court.

[2]      The certificate of judgment was in fact issued by the District Court on 8

November 2010 and in terms of that judgment Mr Hallett was adjudged to owe to the creditor $140,000 together with additional costs.  The creditor’s application was duly verified on oath by the creditor himself in an affidavit sworn on 15 December 2010.

[3]      Mr  Hallett  filed  a  notice  of  intention  to  oppose  the  application  for adjudication.   The only relevant assertion that seems to arise in the notice of opposition is in paragraph 3 where the debtor says that no act of bankruptcy “can succeed, let alone has been or was committed”.   The document is largely incomprehensible but  I will approach matters on the basis that  it amounts to a pleading that no act of bankruptcy has been committed.

[4]      The creditor filed an affidavit dated 9 December 2010 establishing that Mr Hallett  had  been  served  with  a  bankruptcy  notice  30  November  2010.    The bankruptcy notice reflects the judgment that had been obtained against Mr Hallett. Today Mr Hallett has appeared supported by a McKenzie Friend and has made submissions to me.  These appear to be based upon a document which was filed with the Registrar by means of email attachment on 8 August 2011 with a further copy being filed 9 August 2011.  The document in question appears to comprise copies of the original bankruptcy notice and of the application for order for adjudication. There are impressed upon those documents various seals and they also bear the words stamped on them “not negotiable non-transferable without recourse”.   They also bear the statement “inchoate instrument accepted for value returned complete: ... pay the sum certain of 1 New Zealand dollar exactly”

[5]      I gather from what Mr Hallett has told me today that it is his submission to me that the service of this document, which he considers to be some type of negotiable instrument, has extinguished any debt that might have been owed to the creditor or at least reduced it to an amount where the Court does not have power because of the provisions of s 13, to make an order for adjudication.  That is to say the amount is less than $1,000, in the debtor’s view.  I have to say that I am quite unable to follow the arguments that have been advanced by Mr Hallett either in the notice of opposition or any submissions orally made today.

[6]      The creditor has filed a certificate averring that the sum of $140,000 owed to the judgment creditor remains unpaid and that no payment has been received in respect of the debt which therefore remains unpaid.  I consider that the creditor has established that Mr Hallett is indebted to him in the sum of $140,000.  The matters which he has raised in his notice of opposition and submission do not provide any answer to the certificate of judgment and the chain of documents filed subsequently to the entry of judgment including the certificate as to unpaid debt.

[7]      So far as I am aware no other grounds of opposition have been stated.  I am unable to discern any viable defence to the creditor’s claim.  Nor am I able to discern any discretionary grounds upon which the Court might be persuaded that in its discretion it ought not to make an order of adjudication.  I therefore propose to make the order sought and there will be an order adjudicating the debtor bankrupt.  The debtor will pay costs on a 2B basis and disbursements fixed by the Registrar.  The

order is made at 12.36 p.m.

J P Doogue

Associate Judge