Hampton - [2019] NZHC 1774

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2011-409-002055

[2019] NZHC 1774

IN THE MATTER

AND
of s 292 Insolvency Act 2006

IN THE MATTER

of the bankruptcy of DAVID JOHN HAMPTON

CIV-2015-409-000043

UNDER

the Companies Act 1993

BETWEEN

COMMISSIONER OF INLAND REVENUE

Plaintiff

AND

CHESTERFIELDS PRESCHOOLS

LIMITED (in interim liquidation)
First Defendant

AND

THERESE ANNE SISSON

Second Defendant

Hearing: 25 July 2019

Appearances:

D J Hampton (Bankrupt) in person – on -2055 proceeding T A Sisson in person (Second defendant in -43 proceeding)

S J Kinsler and C Russell for Commissioner of Inland Revenue G J Slevin for Official Assignee

J Wedlake for Chesterfields Preschools Ltd (in liquidation)

Judgment:

26 July 2019

RE HAMPTON [2019] NZHC 1774 [26 July 2019]

JUDGMENT OF OSBORNE J

(on stay applications)

This judgment was delivered by me on 26 July 2019 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1] For convenience, these proceedings were called together today, Mr Hampton and Ms Sisson relying on the same matters of background in support of closely-related applications.

The -43 proceeding

[2] In the -43 proceeding, this Court made an order putting Chesterfields Preschools Limited into liquidation.1 Ms Sisson has filed a notice of appeal against that judgment.

[3] Ms Sisson had been previously joined as a second defendant in the -43 proceeding at a time when she wished to appeal a previous liquidation order (subsequently overturned on appeal). She remained a party to the proceeding.

[4]She has filed two interlocutory applications.

[5] First, there is an application for an order staying the liquidation judgment pending the hearing and determination of a misfeasance proceeding commenced in CIV-2008-409-995.

[6] Secondly, there are applications for removal of a freezing order and a caveat against the title to a property at 854 Colombo Street. Those applications are not dealt with here as they have been filed incorrectly in this proceeding. A Minute will issue with directions as to those matters.

1 Commissioner of Inland Revenue v Chesterfields Preschools Limited (in interim liquidation) [2019] NZHC 272 [26 February 2019] (reissued on 7 May 2019).

The -2055 proceeding

[7] Mr Hampton was adjudicated bankrupt on 5 June 2013, on the application of Minter Ellison Rudd Watts, the Commissioner of Inland Revenue appearing in support of the adjudication application.

[8] This Court in 2018 conducted a public examination of Mr Hampton under s 295 Insolvency Act 2006, the Official Assignee and the Commissioner opposing Mr Hampton’s unconditional discharge. The Court ordered that Mr Hampton be discharged from bankruptcy from 30 July 2018, and imposed prohibitions upon him from identified business activities for a four-year period.

[9] Mr Hampton filed a notice of appeal against that judgment. He appeals the judgment on the basis first that there should not have been business prohibitions and, secondly, that this Court failed to give consideration (under s 298(1)(c) Insolvency Act) to the making of an order suspending Mr Hampton’s discharge…

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: [2019] NZHC 1774
Decision Date: 26 July 2019

CaseChat Overview and Summary

In this case, the High Court of New Zealand dealt with two related applications brought by David John Hampton and Therese Anne Sisson. Hampton, who had been declared bankrupt, sought a stay of his discharge from bankruptcy pending the determination of his appeal. Sisson, who was associated with Chesterfields Preschools Limited, sought a stay of the liquidation of the company and a stay of any dealing with a property at 854 Colombo Street. The legal issues before the court were whether the applicants could rely on rule 17.29 of the High Court Rules to stay enforcement of the judgments, and if not, whether they could rely on rule 12 of the Court of Appeal (Civil) Rules. The court found that the applicants could not rely on rule 17.29 because the judgments related to status rather than a civil debt or liability. However, the court found that the applicants could rely on rule 12 and granted stays on the condition that the applicants diligently prosecute their appeals. The court also reserved leave to the Official Assignee and the Commissioner of Inland Revenue to review the stays if the appeals were not prosecuted diligently. The court ordered a stay of Hampton's discharge from bankruptcy and a stay on any dealing with the property at 854 Colombo Street pending the determination of the appeals.

Orders