Harrison v Harrison - [2015] NZHC 254

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000496 [2015] NZHC 254

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER OF

the bankruptcy of PAULINE JANICE HARRISON

BETWEEN

GRAEME ROSS HARRISON and ADRIENNE HARRISON Judgment Creditors

AND

PAULINE JANICE HARRISON Judgment Debtor

Hearing: 23 February 2015

Appearances:

S J Shamy for Judgment Creditors
P J Harrison (Judgment Debtor) in person with

A J Harrison as McKenzie Friend (but judgment debtor not appearing on 24 February 2015)

Judgment:

24 February 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on adjudication application

Introduction

[1] The judgment creditors obtained a costs judgment against Miss Harrison on 1

March 2013.1 After giving credit to Miss Harrison for a sum of costs awarded to her in another proceeding, the judgment creditors had a bankruptcy notice issued in relation to a debt of $5,102.32.

[2] Miss Harrison committed an act of bankruptcy when she failed to comply with the bankruptcy notice. Yesterday, I formally dismissed her application to have

1 Valerie Geard Family Trust v Harrison [2013] NZHC 385.

HARRISON v HARRISON [2015] NZHC 254 [24 February 2015]

the bankruptcy notice set aside – the application being dismissed because Miss Harrison did not effect service of a copy of the application upon the judgment creditors within the required 10 working days.2

Miss Harrison’s opposition to adjudication application

[3] Miss Harrison’s initial opposition to the adjudication application was contained in a document entitled “Memorandum of Pauline Janice Harrison applying to stay/halt “Banco” List call on Thursday, 9 October 2014” (that date being the first hearing date of the application).

[4] The content of that initial document made it plain that Miss Harrison seeks a refusal of the application under s 37 of the Insolvency Act 2006 or an order halting the application under s 38 of the Insolvency Act.

[5] She subsequently filed on 8 October 2014 a Notice of Intention to oppose the adjudication application, adopting the form provided by the High Court Rules, but incorporating reliance on her earlier Memorandum.3

The Court’s jurisdiction

[6] Section 13 of the Insolvency Act 2006 provides for when a creditor may apply for a debtor’s adjudication. The requirements of s 13 are met in this case because –

(a) Miss Harrison owes the creditors $1,000 or more;

(b)Miss Harrison committed an act of bankruptcy within the period of three months before the filing of the application;

(c) The debt is a certain amount; and

(d) The debt is payable immediately.

2 Harrison v Harrison [2015] NZHC 244.
3 High Court Rules, Form B6, First Schedule.

[7] By s 36 of the Act the Court may, at its discretion, adjudicate the debtor bankrupt if the creditor has established the requirements set out in s 13 (as has been done in this case).

[8] Section 37 of the Act provides further for the Court’s discretion. It provides:

37 Court may refuse adjudication

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

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.

Continue reading Harrison v Harrison

Details

AGLC: Harrison v Harrison [2015] NZHC 254
Case: [2015] NZHC 254
Decision Date: 24 February 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Graeme Ross Harrison and Adrienne Harrison, as judgment creditors, sought adjudication of Pauline Janice Harrison as bankrupt in relation to a debt of $5,102.32. Miss Harrison, the judgment debtor, opposed the application, arguing that the creditors were pursuing the bankruptcy for improper purposes and that she was not insolvent. The court had to decide whether the creditors were entitled to adjudicate Miss Harrison bankrupt and whether there were any grounds to refuse or halt the adjudication application. The court found that the creditors had established the requirements for adjudication under the Insolvency Act 2006. Miss Harrison's grounds of opposition, including allegations of ulterior motives, corrupt and fraudulent behaviour, and claims of being solvent, were examined and found to be without merit. The court concluded that there was no ground to justify refusing the creditors an order of adjudication or halting the application. Costs were awarded to the judgment creditors on a Category 2 Band B basis. The orders made were that Miss Harrison's application for an order halting the adjudication application was dismissed, she was adjudicated bankrupt, and she was to pay the judgment creditors' costs of the application on a 2B basis together with disbursements to be fixed by the Registrar.

Orders