Honey v Nottingham - [2018] NZHC 575

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002004

[2018] NZHC 575

UNDER the Insolvency Act 2016

IN THE MATTER

of the bankruptcy of D G Nottingham

BETWEEN

MARTIN RUSSELL HONEY, STEPHANIE HONEY AND HEMI TAKA

Judgment Creditors

AND

DERMOT GREGORY NOTTINGHAM

Judgment Debtor

Hearing: 14 March 2018

Appearances:

D Grove for the Judgment Creditors Judgment Debtor in Person

Judgment:

29 March 2018

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 29 March 2018 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Foy Halse, Auckland

HONEY & Ors v NOTTINGHAM [2018] NZHC 575 [29 March 2018]

D Grove, Auckland

Introduction

[1] In my judgment of 27 October 2017, I set out my reasons for refusing to grant Mr Nottingham’s interlocutory application to set aside the bankruptcy notice served on him by the judgment creditors.

[2] Mr Nottingham, the judgment debtor, wishes to appeal my judgment to the Court of Appeal. He has filed an application to this Court for leave to appeal, and for leave to seek that out of time. The application, filed on 13 December 2017, is opposed by the judgment creditors.

[3] At issue is whether the application ought to be granted. There is however a preliminary issue: whether it is even necessary to apply to this Court for leave.

Is the application necessary?

[4] This issue of whether leave is necessary is provided for in s 56(3) and (4) of the Senior Courts Act 2016:

56 Jurisdiction

…

(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(4) Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)granting summary judgment.

[5] At the hearing, both sides were of the opinion that subs (3) applied presently. However, I consider it strongly arguable the present situation is caught by subs (4).

My 27 October decision dismissing an application to set aside a bankruptcy notice is, in my view, a dismissal of “part of a proceeding” — or, to frame it differently, is analogous to the striking out of a “defence”. If so, then leave of this Court is not required to appeal from my 27 October decision. Rather, what Mr Nottingham needs is the Court of Appeal’s leave for late filing.

[6] But in case I am wrong in this analysis, I accept it is appropriate to proceed as if subs (3) does apply. I…

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 Honey v Nottingham

Details

AGLC: Honey v Nottingham [2018] NZHC 575
Case: [2018] NZHC 575
Decision Date: 29 March 2018

CaseChat Overview and Summary

The case of Honey v Nottingham involves a bankruptcy proceeding brought by the judgment creditors, Martin Russell Honey, Stephanie Honey, and Hemi Taka, against the judgment debtor, Dermot Gregory Nottingham. The creditors sought to enforce a costs judgment against Nottingham, which led to the issuance of a bankruptcy notice. Nottingham filed an application to set aside the bankruptcy notice, which was dismissed by the Associate Judge. Nottingham then applied for leave to appeal the decision to the Court of Appeal, seeking permission to appeal out of time. The primary legal issue before the Court was whether leave to appeal should be granted to Nottingham. Additionally, the Court had to determine whether leave was necessary, considering the statutory provisions under the Senior Courts Act 2016.

The Associate Judge found that the appeal might not require leave if the decision dismissing the application to set aside the bankruptcy notice is considered a dismissal of "part of a proceeding" or analogous to striking out a defence, allowing for an appeal without leave. However, the Court proceeded under the assumption that leave was necessary and examined whether it should be granted. Nottingham argued that the delay in serving the application documents on the creditors was due to the Court Registry's failure to provide service copies in time, which he claimed warranted an extension or waiver of the time limit. He also contended that Parliament intended for the Court to have discretion to extend time limits in such cases. The Court found these arguments unconvincing. The statutory time limit for filing and serving an application to set aside a bankruptcy notice is clear and established by case law, and there was no indication of a legislative intent to alter this. The Court concluded that Nottingham's failure to serve the documents on time, despite having the opportunity to do so, did not justify further delay in proceedings.

The Associate Judge ultimately declined Nottingham's application for leave to appeal, finding that the circumstances did not warrant incurring further delay. Nottingham could not demonstrate a serious injustice if leave was refused, nor did he bring a seriously arguable issue of law. The creditors were entitled to proceed with their bankruptcy application, and Nottingham could raise any proper grounds for the Court to refuse to bankrupt him during the adjudication. The judgment creditors were awarded costs on a 2B basis and disbursements as fixed by the Registrar.

Orders