Heslip v Heslip - [2022] NZHC 2910

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2022-476-000004

[2022] NZHC 2910

BETWEEN
PHILLIPA JOY HESLIP

Judgment Creditor

AND

GLEN ALLAN HESLIP

Judgment Debtor

Hearing: 7 November 2022

Counsel:

T C G Nation for Judgment Creditor

G A Heslip, Judgment Debtor in person

Judgment:

7 November 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 November 2022 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HESLIP v HESLIP [2022] NZHC 2910 [7 November 2022]

[1] This is an application by the judgment creditor (Mrs Heslip) to adjudicate the judgment debtor (Mr Heslip) bankrupt.

[2] Mr and Mrs Heslip were husband and wife. Mrs Heslip commenced this proceeding following the failure by Mr Heslip to pay a substantial sum due to her under a consent judgment made by the Family Court at Timaru on 19 July 2021.

[3] On 16 February 2022, Mrs Heslip obtained the issue of a bankruptcy notice from this Court in respect of that judgment sum, which was served on Mr Heslip on 5 March 2022. Mr Heslip did not comply with the bankruptcy notice. Accordingly he committed an act of bankruptcy on 20 March 2022.

[4] Mrs Heslip filed her creditor’s application on 26 May 2022. The application first came before this Court on 27 June 2022.

[5] Mrs Heslip’s application has now been before the Court and adjourned on several occasions. This is because Mr Heslip filed a notice of intention to oppose the application on the ground that he was applying to have the consent judgment of the Family Court set aside. There were delays because initially Mr Heslip made his application to this Court rather than the Family Court. Eventually, Mr Heslip made his application to the Family Court and it was heard by Judge Dravitzki on 20 October 2022. On 28 October 2022, Judge Dravitzki dismissed Mr Heslip’s application.

[6] Mrs Heslip’s adjudication application again came before the Court on 31 October 2022. As I recorded in my minute of that conference, Mr Heslip now accepts the consent judgment and says he is taking steps to pay Mrs Heslip. As this would require him to undertake work on and sell certain properties, he is presently in no position to pay the debt. I adjourned Mrs Heslip’s application to be called again today so that Mr Heslip could obtain legal advice, having advised him to obtain such advice previously.

[7] This morning Mr Heslip, with the assistance of his son, emailed the Court and advised that he would not be appearing in Court today as he has tested positive for

COVID-19. In addition, he has applied to the Official Assignee to have himself adjudicated bankrupt.

[8] The Official Assignee has confirmed Mr Heslip did make a debtor’s application but says the application has not been accepted because he has not satisfactorily completed a statement of affairs.1 Mr Heslip has been asked to do so…

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 [2022] NZHC 2910
Case: [2022] NZHC 2910
Decision Date: 7 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand Timaru Registry, Phillipa Joy Heslip, the judgment creditor, sought to adjudicate her ex-husband, Glen Allan Heslip, the judgment debtor, bankrupt. This application arose out of a Family Court consent judgment made on 19 July 2021, whereby Mr Heslip was ordered to pay a substantial sum to Mrs Heslip. After Mr Heslip failed to make the payment, Mrs Heslip issued a bankruptcy notice on 16 February 2022, which was served on 5 March 2022. Mr Heslip did not comply with the notice, and as such, committed an act of bankruptcy on 20 March 2022. Mrs Heslip filed her creditor's application on 26 May 2022, which has since been repeatedly adjourned due to Mr Heslip's unsuccessful application to set aside the consent judgment.

The court had to decide whether to exercise its discretion under s 37 of the Insolvency Act 2006 to refuse an order for adjudication of bankruptcy, despite the statutory grounds under s 13 being met. The court also had to consider Mr Heslip's inability to attend due to a positive COVID-19 test and his application to the Official Assignee to be adjudicated bankrupt. The court noted that Mr Heslip had recognised the inevitable result of the adjudication and had already made a debtor's application.

The court found no basis to exercise its discretion to refuse the adjudication order, as the matters raised by Mr Heslip in opposing the application were the same as those rejected by Judge Dravitzki in his judgment refusing to set aside the consent judgment. The court also held that Mr Heslip's absence due to COVID-19 did not justify further adjournment, as he had not raised any new matters and had already applied to the Official Assignee for bankruptcy. The court ultimately made an order under s 36 of the Insolvency Act 2006, adjudicating Mr Heslip bankrupt. Mrs Heslip was awarded costs on a 2B basis and disbursements as fixed by the Registrar.

Orders