Indiana Publication (NZ) Limited v Prasad HC Auckland CIV 2010-404-3333

[2010] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-003333

IN THE MATTER OF     Section 13 of the Insolvency Act 2006

BETWEEN  INDIANA PUBLICATIONS (NZ) LIMITED

Judgment Creditor

ANDRAJENDRA PRASAD Judgment Debtor

Hearing:         11 November 2010

Counsel:         GM Harrison for judgment creditor Appearance:  R Prasad, judgment debtor in person Judgment:  11 November 2010 at 12:39pm

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to recall judgment]

Solicitors:           Parshotam & Co, PO Box 27 079, Auckland

And To:             R Prasad, 3 Mono Place, Ellerslie

INDIANA PUBLICATIONS (NZ) LTD V PRASAD HC AK CIV 2010-404-003333  11 November 2010

[1]      In my judgment of 11 October 2010[1] I set out my reasons as to why an order of adjudication could be made against the judgment debtor.

[1] Indiana Publications (NZ) Ltd v Prasad HC Auckland CIV 2010-404-3333.

[2]      I recorded the following in [15] of the judgment:

[15]     But for one matter, I am satisfied that there are no discretionary matters which would justify refusing to exercise the discretion to adjudicate  the  judgment  debtor  in  this  case.    The  one  matter, however, that I raised in the course of argument with the judgment debtor was whether he was in a position to pay the judgment in favour of the judgment creditor.   He assured me that if he was allowed a period of 21 days he could make such payment.  The sums due in the judgments attached to the judgment creditor’s affidavits in support total $59,417.00.   I announced in open court that I would allow an adjournment to allow payment to be made in cleared funds before the adjourned date of hearing.

[3]      As a result I record in [16] the following:

[16]     Accordingly, I adjourn this proceeding to 10am on 29 October 2010.

If in fact the sum of $59,417.00 has not been paid to the judgment creditor in clear funds before that time, the judgment debtor can expect that an order of adjudication will be made.  If, however, that sum is paid there is still a risk to the judgment debtor that an order of substitution would be made in favour of the Crown which has a judgment against the judgment debtor for $13,227.07.   That arises from the judgment of Justice Cooper of 23 August 2010 and sealed on 9 September 2010.   An order for substitution may be made in appropriate circumstances pursuant to the Insolvency Act 2006, s 44.

[4]      The judgment debtor appeared before Lang J on 29 October 2010 because of the fact that I was unavailable.  His Honour adjourned this proceeding until today for consideration by me because an application to recall my judgment had been filed by the judgment debtor.

[5]      The debt has not been paid.  Mr Harrison had made appropriate inquiries and assures me that that is the position.

[6]      I deal specifically with the application to recall my judgment.  The Court of Appeal  in  Erwood  v  Maxted  and  Glasgow[2]   gave  guidelines  for  the  recall  of judgments in civil proceedings:

[2] Erwood v Maxted and Glasgow [2010] NZCA 93 at [23].

[23]    This Court is concerned with the proliferation of unjustified applications to recall judgments and has agreed upon the following guidelines to deal with such applications.

(a)      Accidental slips or omissions

(i)        Any accidental slip or omission may be corrected under r 8 of the Court of Appeal (Civil) Rules 2005.

(ii)      Where  the  parties  are  agreed  that  an  error  or omission which falls within r 8 should be remedied, a joint memorandum may be filed for consideration by the Court.

(iii)      Where there is no agreement, or where the Court directs, a formal application is required in accordance with the process set out in (c) below.

(b)      Applications to recall judgments not falling within r 8

(i)        Where a party seeks to recall a judgment not falling within r 8, the criteria set out in Horowhenua County v Nash (No 2)[1968] NZLR 632 at p 633 (as confirmed by this Court in Unison Networks Limited v Commerce Commission [2007] NZCA 49) are to be followed and will be strictly applied.

(ii)      Applications which merely seek to relitigate matters already considered, or to challenge substantive findings  of  fact  and law, will  not  be  entertained. Reference   may   usefully   be   made   to   Ngahuia Reihana Whanau Trust v Flight CA23/02 26 July

2004;   and   Faloon   v   Commissioner   of   Inland

Revenue (2006) 22 NZTC 19,832.

(c)      Process

(i)        Where a formal application is required in terms of these guidelines:

(a)it  must  be  made  on  notice  to  all  other parties;

(b)any party served with an application need not respond unless directed to do so by the Court;

(c)       the Court will deal with the application on the papers or by oral hearing in terms of r

51(6);

(d)       the   Court   will   usually   give   only   brief reasons for its decision on any application;

(e)any further application seeking to recall a decision  refusing  an  application  to  recall will usually be dealt with summarily; and

(f)the Court will consider ordering increased or indemnity   costs   against   parties   and/or counsel bringing unmeritorious applications.

[7]      I have carefully considered the judgment debtor’s application and I have given him a brief opportunity to address.   What he seeks to do is to relitigate the matters that have already been ruled upon.  There is simply no justification for his application to recall my judgment.  That application is accordingly dismissed.

[8]      I come now to deal with the application for an order for adjudication.

[9]      The judgment debtor has had an opportunity to pay the debt which is referred to in the papers and was referred to in my judgment.[3]    I have asked him today whether he intends to pay it and he said that he did not think he should be paying it. I am satisfied that he has had the opportunity to pay and it has not been paid.  There is no jurisdictional bar and no other reason why an order of adjudication should not be made.

[3] Indiana Publications (NZ) Ltd v Prasad HC Auckland CIV 2010-404-3333, 11 October 2010.

[10]     Accordingly, I order that Rajendra Prasad be adjudicated a bankrupt. [11]     This order is made at 12:32pm.

Costs

[12]     I gave both counsel and Mr Prasad the opportunity to address on the question of costs.  Mr Harrison somewhat modestly, in my view, simply seeks costs on a 2B basis, which clearly are justified in the circumstances of this case.   Mr Prasad’s response  was  simply that  he  would  wish  to  appeal  my decision,  which  I have indicated to him is his right should he wish to do so.  There is no reason advanced by him, however, at this stage as to why an order for costs should not be made.

[13]     Accordingly,  I  order  costs  in  favour  of  the  judgment  creditor  based  on

Category 2, Band B together with disbursements as fixed by the Registrar.

JA Faire

Associate Judge