Harrison v Harrison - [2015] NZHC 244

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000496 [2015] NZHC 244

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

Judgment:

23 February 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on application to set aside bankruptcy notice

Introduction

[1] The debtor (Miss Harrison) seeks an order setting aside a bankruptcy notice.

The judgment debt

[2] Miss Harrison is indebted to the creditors as a result of a judgment debt, the judgment being of this Court and dated 1 March 2013. Miss Harrison was ordered to

HARRISON v HARRISON [2015] NZHC 244 [23 February 2015]

pay to the creditors a total of $6,354 (with interest subsequently accruing at 5 per cent per annum).1

[3] The creditors in turn give Miss Harrison a credit for costs of $1,666 awarded to her in subsequent proceedings.

Bankruptcy notice

[4] The creditors had a bankruptcy notice issued on the basis of their judgment

(less credit). The bankruptcy notice was served on Miss Harrison on 18 August

2014.

Application to set aside the bankruptcy notice

[5] On 1 September 2014, Miss Harrison filed a document in the nature of an application to set aside the bankruptcy notice. I say “in the nature of” because it was headed by Miss Harrison:

Defence motion to strike out bankruptcy notice of trustees by defrauded fixed final beneficiary victim – the Valerie Geard Trust on grounds of no case to answer under the rules and equity – and on grounds of vexatious abuse of Court process and violation of the rule of law doctrine of unclean hands.

[6] The document itself commenced with a statement that Miss Harrison disputed the validity of the notice served on her on 18 August 2014.

[7] As no form is prescribed for an application to set aside a bankruptcy notice, I have treated the document filed by Miss Harrison as valid, at least in terms of its form. Miss Harrison’s application was subsequently made the subject of a formally correct amended application.

[8] The creditors, in their bankruptcy notice, had included as one address for service a facsimile number. Miss Harrison sent the documents by facsimile to that number. Raymond Parmenter, the barrister at that point acting for the creditors, has
exhibited a relevant page from the application documents which indicates

1 High Court Rules, r 11.27; Judicature Act 1908 s 87; Judicature (Prescribed Rate of Interest) Order 2011.

transmission at 5.27 pm on 1 September 2014. The page in question is the second page, the first page receipt details having been illegible. Mr Parmenter deposes that the first page would have arrived moments before the second page.

[9] Miss Harrison has not provided any evidence to directly dispute the timing of the…

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 244
Case: [2015] NZHC 244
Decision Date: 23 February 2015

CaseChat Overview and Summary

The High Court of New Zealand considered an application to set aside a bankruptcy notice served on Pauline Janice Harrison. The application was brought by the judgment creditors, Graeme Ross Harrison and Adrienne Harrison, who had obtained a judgment against Miss Harrison for $6,354 plus interest. The creditors served a bankruptcy notice on Miss Harrison on 18 August 2014, and she filed an application to set aside the notice on 1 September 2014. However, the application was not served on the creditors until the 11th working day after the bankruptcy notice was served.

The legal issues before the Court were whether the application to set aside the bankruptcy notice was filed within the statutory time limit and whether the bankruptcy notice itself was flawed. The Court found that the application was not served within the required 10 working days, making it a nullity. Furthermore, the Court dismissed Miss Harrison's arguments that the bankruptcy notice was flawed, concluding that there was no prejudice caused by the alleged defects.

The Court ruled that the application to set aside the bankruptcy notice was dismissed, and Miss Harrison was ordered to pay the creditors' costs of the application on a Category 2B basis, along with disbursements to be fixed by the Registrar. The Court rejected Miss Harrison's argument that the creditors were acting with ulterior motives or that awarding costs would breach the rule of law, stating that the creditors had acted reasonably in pursuing their debt.

Orders