Indiana Publications (NZ) Limited v Prasad

[2012] NZHC 1916

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-003333 [2012] NZHC 1916

IN THE MATTER OF     Section 13 of the Insolvency Act 2006

AND IN THE MATTER OF the bankruptcy of Rajendra Prasad

BETWEEN  INDIANA PUBLICATIONS (NZ) LIMITED

Judgment Creditor

ANDRAJENDRA PRASAD Judgment Debtor

Hearing:         1 August 2012

Appearances: G M Harrison for Indiana Publications (NZ) Ltd and on instructions today from the Crown Law Office for Manukau District Court and from the Official Assignee

R Prasad in person

Judgment:      1 August 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Parshotam & Co, PO Box 27079, Mt Roskill

Counsel:

G M Harrison, PO Box 99617, Newmarket

Also to:

R Prasad, 3 Mono Place, Ellerslie, Auckland

INDIANA PUBLICATIONS (NZ) LIMITED V RAJENDRA PRASAD HC AK CIV 2010-404-003333 [1

August 2012]

[1]      There are two applications by Mr Prasad before the Court.   The first is described as an application for annulment of bankruptcy.  For reasons I will address shortly, it is more appropriately considered as an application for leave to bring that application.  The second is an application for adjournment, so that the application for annulment can be heard at the same time as a civil claim (which Mr Prasad refers to as a counterclaim) which he says he has recently filed under Court no. CIV 2012-

404-4172.

[2]      For reasons that will become apparent, it is appropriate that I address first the application for leave to bring an application for annulment, and then address the application for adjournment.

[3]      Mr Prasad was adjudicated bankrupt on 11 November 2010.   He has been engaged in continuous litigation since that time seeking to overturn his adjudication (although I note at the outset that this has not been by way of appeal of the judgment in which he was adjudicated).

[4]      On 11 July 2012 he filed an application (dated 3 July 2012) described as an application for annulment of the bankruptcy.  In essence he was challenging the costs order on which the bankruptcy notice was based. That was an order made by Wylie J in a judgment given on 9 October 2009 following an appeal from a judgment at the District Court at Manukau.   The decision of the District Court was in relation to litigation over a copyright issue.

[5]      Mr Prasad followed the application filed on 11 July 2012 with a further application filed on 13 July 2012 (but curiously dated 16 July 2012), again headed as an application for annulment.   That application appears to be an expansion of the application filed on 11 July 2012.  Its primary focus again appears to be a challenge to the underlying costs order, but in addition Mr Prasad has added challenges to a ruling given by Brewer J in a judgment given on 1 March 2012 (to which I will return), and reference to a counterclaim which Mr Prasad contends he could not bring at the time of the application for adjudication.

[6]      On their face these two applications appear to be in breach of a direction given by Brewer J in his judgment of 1 March 2012:[1]

[18]      I  further  direct  that  the  registry  refuse  to  accept  for  filing  any documents which might hereafter be filed by Mr Prasad which in any way relate to  his  bankruptcy without  first  obtaining the  leave  of a Judge  or Associate Judge.

[1] Prasad v Indiana Publications (NZ) Ltd [2012] NZHC 316 at [18].

[7]      In an effort to help to get the Court to the heart of the issue, Mr Harrison has said that his client will agree to the Court treating the application (I treat the latter application as overtaking the earlier one) as an application for leave in terms of that direction.   He argues, however, that leave should be refused as none of the three grounds advanced are sustainable.

[8]      Although these issues have already received a considerable amount of Court attention,  I have  given  Mr  Prasad  the  opportunity today to  explain  what  he  is advancing in these applications, and how they may differ from the matters that have been considered by the Court on several occasions over the past two years.   In essence, as I understand what he has said to me, it is that he expects to get relief from the Court either in the proceeding that he has recently filed, or in an application that he has produced to the Court today (but has not yet attempted to file) in which he now seeks recall of Brewer J’s decision.

[9]      Dealing first with the civil claim, he contends that this raises some new copyright issues, but a quick reading of it indicates that at least a substantial part of it relates to his unrequited disappointment over the costs order.   In relation to the application for recall, that is clearly an attempt to revisit the various decisions given to date, culminating in Brewer J’s decision, in relation to the costs issue.

[10]     I will deal with each of these points in turn, by reference to the grounds advanced for the application for leave/annulment.

[11]     There are two obstacles to Mr Prasad’s application for recall, irrespective of

its possible relevance to the application for annulment.  The first is that Mr Prasad has already filed an appeal against that decision.  That appeal has not been advanced

because Mr Prasad has not met an order for security for costs.  On that basis it is difficult to see how this Court can have any jurisdiction in respect of a challenge to the underlying decision.  The second, albeit related point, is that I am unable to take this application into account (even if I could see any relevance) until such time as Mr Prasad  obtained  leave  to  file  it  (that  is  the  standing  order  under  Brewer  J’s judgment).  The application for recall, itself, must be subject to Brewer J’s direction that leave be obtained.   Mr Prasad referred me to r 11.9 of the High Court Rules, contending that it allowed him to bring that application without seeking leave.  I do not accept that that rule gives him that right.   In my view, Brewer J’s direction prevails.   In coming to this view, I have had regard to the very lengthy history of litigation by Mr Prasad.

[12]     I turn now to consider his recently filed civil claim.  There again appears to be an insuperable difficulty for Mr Prasad in terms of advancing this in support of leave to bring his application for annulment.   Mr Harrison informs me that the counterclaim was struck out by Hansen J on 19 July 2012.  Although there is no evidence before me of that, Mr Prasad did not challenge Mr Harrison’s statement, and I assume that it can be established in any event as a matter of record.

[13]     There are two other difficulties with the claim.  The first is that even if it had any  substance  I  do  not  consider  that  it  can  be  relevant  to  the  application  for annulment until such time as the claim is established.  The second is that Mr Prasad will have to show that it raises new matters, that is, other than those determined by the in the District Court and then in this Court on appeal.  From a brief perusal of the copy of the claim put before me, it is difficult to see that it contains anything other than his challenge over costs.  Although I do not understand what he is saying under his claim under the Copyright Act 1994, that seems to be something that could well have been addressed already by the earlier proceedings.  Significantly, for the present application, I see the civil claim as only having relevance if and when Mr Prasad was to obtain any judgment which might give him a basis to clear his debts to the existing creditors.

[14]     The last ground for the application is Mr Prasad’s contention that the costs order made by Wylie J was invalid (as are various costs orders made since, all of which are also unpaid).

[15]     I note that the dispute over costs appears to have been triggered, not by the order, but by the judgment of Associate Judge Faire of 11 November 2010 adjudicating Mr Prasad bankrupt.   That judgment was given on the basis that the costs order was valid.   It is significant that Mr Prasad did not appeal against that order.  Instead he embarked on the course of litigation which has lead to the direction of Brewer J on 1 March 2012.  In summary that is:

(a)      He applied to annul the order for adjudication.  In that application he raised his issues over costs.   Associate Judge Sargisson gave a judgment  on  14  June  2011  dismissing  that  application,  having carefully considered the arguments over costs.

(b)He applied for review of Associate Judge Sargisson’s decision.  That application was dismissed by Dobson J on 20 July 2011.

(c)       He  applied  to  recall  Dobson  J’s  decision.    That  application  was

dismissed by Toogood J in a judgment of 22 August 2011.

(d)The creditor, Indiana Publications (NZ) Limited, applied to seal the costs order of Wylie J.  Mr Prasad applied to review the decision of the  Deputy  Registrar  to  seal  that  order.     That  application  was dismissed by Associate Judge Christiansen on 16 December 2011.

(e)      He applied to review Associate Judge Christiansen’s decision.  That application  was  dismissed  by  Brewer  J  on  1  March  2012  (the judgment I have already mentioned).

[16]     The original costs judgment is a final judgment, as have been the costs orders made since. They have not been appealed.  There is no basis, in my view, for Mr Prasad now to take issue with them.  Mr Prasad has been unable to point me to any

significantly new ground now being advanced, and it is difficult to imagine what other ground could realistically arise.   If there is a separate and discrete copyright point, he can always bring that (if that right is still vested in him as an undischarged bankrupt).  As I have already said, if he was to get any relief which allowed him to settle matters with his creditors, he could then seek annulment.

[17]     In light of that background I accept that the present applications, including the application for leave, are an abuse of process.  There is simply no new or tenable basis  on  which  they can  be pursued.   The  corollary to  that  is  that  there is  no foundation to Mr Prasad’s application for an adjournment.

[18]     The Registrar has accepted the two applications I have mentioned.   They should not have been accepted in light of the direction by Brewer J.  As they have been accepted, I make an order that they be struck out.

[19]     Mr Prasad wishes to file his application to recall the decision of Brewer J.  It is apparent from the grounds stated in that application that it is subject to the order made in paragraph [18] of his decision.  That order stands until such time as it is set aside by the Court of Appeal.   The Registrar is not to accept that application for filing.

[20]     The parties represented by Mr Harrison are entitled to their costs on this hearing and preparation for it.  I award them costs on a scale 2B basis, although Mr Harrison is to look into whether his actual costs will be less than that, in which case he acknowledges that he will be limited to his actual costs.  As the argument has been in respect of all parties, there is only one order for costs covering them all.  His

clients are also entitled to any disbursements as fixed by the Registrar.

Associate Judge Abbott