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 by 11 November 2022.

[9]        When the application came before the Court today, Mr Nation advised that an order for adjudication was sought to bring some finality to this matter.

[10]      I am not prepared to further adjourn this application. It has been ongoing now since February 2022 and adjourned several times while Mr Heslip pursued his ultimately unsuccessful application to set aside the consent judgment. This has, no doubt, come at significant cost and inconvenience to Mrs Heslip, who has throughout the process been represented by Counsel.

[11]      Mrs Heslip has made out the statutory grounds for obtaining an order adjudicating Mr Heslip bankrupt under s 13 of the Insolvency Act 2006. While the Court has a wide discretion, under s 37 of the Act, to refuse to make an adjudication order, I can see no basis to exercise the discretion in this case. The matters raised by Mr Heslip for opposing the application are the same matters that were considered and rejected by Judge Dravitzki in his judgment refusing to set aside the consent judgment. Mr Heslip has accepted that judgment.

[12]      The fact that Mr Heslip cannot be at Court today does not, in the particular circumstances of this case, justify me adjourning the application further. Mr Heslip has not raised any new matters and does not apply for an adjournment. Further, and most importantly, he has made a debtor’s application to be adjudicated bankrupt recognising that such a result is inevitable. No purpose would be served in those circumstances by adjourning the matter again.

1      Insolvency Act 2006, ss46-49.

Result

[13]      There shall be an order under s 36 of the Insolvency Act 2006 adjudicating Mr Heslip bankrupt.

[14]      Mrs Heslip is awarded costs on a 2B basis and disbursements as fixed by the Registrar.

This order is timed at 4.45 pm on 7 November 2022.

O G Paulsen Associate Judge

Solicitors:
Timpany Walton, Timaru

Copy to: M G A Heslip