Heslip v Heslip - [2024] NZCA 662

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA392/2024
[2024] NZCA 662

BETWEEN	GLEN ALLAN HESLIP Applicant
AND	PHILLIPA JOY HESLIP Respondent

Court:	French P and Hinton J
Counsel:	Applicant in person T C G Nation for Respondent
Judgment: (On the papers)	13 December 2024 at 11 am

JUDGMENT OF THE COURT

A The application for an extension of time is declined.

BThe applicant is to pay the respondent costs on a band A basis, together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

This judgment addresses an application for extension of time to file an appeal against an order for adjudication of bankruptcy.
Mrs Heslip, the respondent, applied to have her ex-husband, Mr Heslip, the applicant, adjudicated bankrupt, following his failure to pay a substantial sum due to her under a consent judgment of the Timaru Family Court dated 19 July 2021.
She obtained the issue of a bankruptcy notice on 16 February 2022, which was served on Mr Heslip on 5 March 2022. Mrs Heslip then filed her application to adjudicate Mr Heslip bankrupt on 26 May 2022. After the application had been adjourned on several occasions, Associate Judge Paulsen made an order that Mr Heslip would be adjudicated bankrupt on 7 November 2022.[1] He also awarded costs to Mrs Heslip on a 2B basis and disbursements as fixed by the Registrar.[2]
[1]Heslip v Heslip [2022] NZHC 2910 at [13].
[2]At [14].
The Judge noted the following background leading up to the adjudication order:
(a)Mrs Heslip’s application had been adjourned several times because Mr Heslip had filed a notice of intention to oppose on the ground he was applying to have the consent judgment of the Family Court set aside. After some delay he eventually made that application, which was heard by Judge Dravitzki on 20 October 2022 and subsequently dismissed.[3]
(b)When the adjudication application came back before the High Court on 31 October 2022, Mr Heslip advised that he accepted the Family Court consent judgment and he was taking steps to pay Mrs Heslip. This would require him to undertake work on and sell certain properties and so he needed time to pay the debt. The application was adjourned to 7 November 2022 so that Mr Heslip could obtain legal advice, as the Judge had previously advised him he should.[4]
(c)On 22 November 2022, Mr Heslip emailed the High Court advising he would not be appearing as he had tested positive for COVID-19. At the same time, he advised that he had applied to the Official Assignee to have himself adjudicated bankrupt.[5] The Official Assignee confirmed Mr Heslip had made a debtor’s application but said it had not been accepted because Mr Heslip had not satisfactorily completed a statement of affairs, which he had been asked to do by 11 November 2022.[6]
[3]At [5].
[4]At [6].
[5]At [7].
[6]At [8].
With that background, the Judge was not prepared to further adjourn the application and made 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 Heslip v Heslip

Details

AGLC: Heslip v Heslip [2024] NZCA 662
Case: [2024] NZCA 662
Decision Date: 13 December 2024 at 11 am

CaseChat Overview and Summary

In Heslip v Heslip, the Court of Appeal of New Zealand was asked to decide whether to grant an extension of time to the applicant, Mr Heslip, to file an appeal against an order for his adjudication as bankrupt. The respondent, Mrs Heslip, had successfully applied to the High Court for the adjudication order after Mr Heslip failed to pay a substantial sum due under a Family Court consent judgment. Mr Heslip applied for an extension of time to appeal the bankruptcy adjudication, arguing that unforeseen circumstances and complexities, including a need for legal representation and evidence compilation, had caused the delay. The Court was required to determine whether the application for an extension of time should be granted, considering the length of the delay, the reasons for it, the conduct of the parties, any prejudice to the respondent, and the significance of the proposed appeal.

The Court of Appeal examined the five considerations set out in Almond v Read for granting an extension of time. It noted that Mr Heslip's application was out of time by approximately one year, which was a lengthy delay, and the process to adjudication had already taken over eight months. The Court found that the alleged reasons for delay had no apparent validity, as Mr Heslip had known for a long time that he should secure legal representation but had not done so and had not provided any information as to why he had not. The Court was also unconvinced by Mr Heslip's claim that he needed time to compile necessary evidence, as none had been filed. Furthermore, the Court noted that the appeal appeared to have no merit, as Mr Heslip had not identified points of the Judge's decision that he claimed were in error and had conflated the Family Court proceedings with the decision of the Associate Judge adjudicating him bankrupt. The Court also noted that Mr Heslip had already applied to the Official Assignee to be adjudicated bankrupt prior to the adjudication order that he now sought to extend time to appeal.

The Court concluded that it would be contrary to the interests of justice to allow an extension of time. The application for an extension of time was declined, and Mr Heslip was ordered to pay the respondent costs on a band A basis, together with usual disbursements.

Orders