Indiana Publications (NZ) Ltd v Prasad HC Auckland CIV 2010-404-3333

[2010] NZHC 1449

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) LTD Judgment Creditor

ANDRAJENDRA PRASAD Judgment Debtor

Hearing:         27 July 2010

Appearances: G M Harrison for Judgment Creditor

R Prasad (Judgment Debtor in person) Judgment:      27 July 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors/Counsel:

Parshotam & Co., PO Box 27079, Mt Roskill, Auckland

G M Harrison, PO Box 4338, Auckland

Copy to:

R Prasad (Judgment Debtor in person), PO Box 14-637, Panmure, Auckland

INDIANA PUBLICATIONS (NZ) LTD V R PRASAD HC AK CIV-2010-404-003333  27 July 2010

[1]      Indiana Publications (NZ) Ltd has issued a bankruptcy notice.  Its bankruptcy notice is based on an order for costs made in this Court by Wylie J.  The order is dated 9 October 2009.  The amount of the order is $14,971.

[2]      The bankruptcy notice was issued out of the Court earlier this year.   Mr Prasad takes a preliminary point about service of the notice.  He says that the notice was handed to him on about 6 July by neighbours’ children.  On the other hand, the creditor relies on the affidavit of its process server, Mr Wickins.   He says that he served the document on Mr Prasad on 28 June 2010 at 11:05 am by bringing the document to Mr Prasad’s attention and leaving it at his front door.  In his affidavit, Mr Wickins makes it clear that Mr Prasad was well known to him through previous service of documents.   He says that on arrival at Mr Prasad’s address, he saw Mr Prasad at the front window of the lounge room, peering from behind the curtains. Mr Wickins says he held up the document to see and he says that Mr Prasad declined to respond to his knocking at the door, and that had happened on previous occasions when he has attended the property to serve documents.   Mr Wickins says that he gestured that he was leaving the document for him and says that, as he left, he indicated to Mr Prasad he no longer had the document.

[3]      Mr Wickins, as a professional service server, obviously has taken care to describe carefully what he did when he served the document.  I am satisfied from his account that he properly served the bankruptcy notice on Mr Prasad on 28 June 2010 at 11:05 am.

[4]      Mr Prasad filed an application to set aside.  He filed it on 7 July 2010 and that is within the time for compliance with a bankruptcy notice, that is, it was filed within the 10 working days.  The creditor takes the point that when Mr Prasad filed the application, Mr Prasad did not also file an affidavit in support of his application. The creditor says that to comply with the requirements of the Bankruptcy Act and the requirements set out on the bankruptcy notice, the debtor must not only file his application, but must also file his affidavit.  It refers to a decision of Associate Judge Gendall Re Memelink ex parte SANCO (NZ) Ltd, 10 March 2009, HC, Wellington, CIV-2008-485-2691.   That decision is, in my view, taking matters unduly strictly. While the rules require someone to file an affidavit with an application to set aside, I

do not regard the failure to file an affidavit as so fundamental that the absence of an affidavit will make the filing of the application a nullity, so that an act of bankruptcy will occur without any account being taken of the filing of the application.   The better view, I suggest, is to follow the course taken by the Court of Appeal in Best v Watson [1979] 2 NZLR 492 which is not to regard slips in procedure as going to matters of fundamental validity. The approach I am taking is to say that, if an application is filed, albeit an affidavit comes in out of time, that is still an effective application to set aside and that would stop time running under the bankruptcy notice until the application itself is determined. Therefore, I am not going to rule against Mr Prasad simply because his affidavit did not come in on time.

[5]      There has been a very tangled procedural history between Mr Prasad and Indiana Publications (NZ) Ltd.  The background to it is allegations by Mr Prasad of having copyright alleged to have been infringed by Indiana Publications.  A different stance has been taken over time as to the correct copyright owner.   Initially, a company, with which Mr Prasad was associated, claimed to be the owner.  The case went to a defended hearing in the Manukau District Court, where there was a finding of no infringement.  Later, Mr Prasad issued proceedings in his own name, alleging that he was the copyright owner and  Indiana  Publications applied for summary judgment against Mr Prasad.  Before that was heard, there was a discontinuance filed by Mr Prasad in the Manukau District Court.  A District Court Judge went on to deal with the application for summary judgment by Indiana Publications and made an order for costs against Mr Prasad on an indemnity basis.

[6]      Mr Prasas then appealed to the High Court.  That appeal was heard by Wylie J.  Wylie J took the point that once Mr Prasad had filed a discontinuance, then it was no longer open to the District Court to hear the summary judgment application and, to that extent, Mr Prasad’s appeal was successful.   However, Wylie J still took matters into his own hands and fixed costs on the discontinuance.  That is the order for costs which is the subject of the bankruptcy notice in this case.

[7]      Since then, there have been a lot of procedural steps taken by Mr Prasad.  He filed an application for judicial review in respect of steps taken in the Manukau District Court.   He was unsuccessful before Cooper J.   He applied to Cooper J to

recall his judgment.  That was unsuccessful.  At various stages he sought leave to appeal to the Court of Appeal, he has applied to this Court, and he has applied to the Court of Appeal for leave to appeal, and his attempts to seek leave to the Supreme Court have also been unsuccessful.

[8]      Against that background, I am satisfied that the order for costs made by Wylie J is a final order.  It is not itself subject to a stay.  I see no basis on which this Court could set aside the bankruptcy notice that has been issued for the enforcement of that order.  In particular, Mr Prasad has failed to persuade me that there was any irregularity about that order or any basis on which that order for costs could be set aside or reviewed.

[9]      The next point is that he has also failed to persuade me that there is any basis whatsoever on which he could say that there was any kind of counterclaim which could be raised against that order which could not have been raised before Wylie J in the hearing before him.  In other words, when I consider the various bases on which Mr Prasad might apply to have judgment set aside, I can see no proper basis for setting aside the bankruptcy notice.

[10]     Accordingly, I dismiss the application.   The effect of my dismissing the application is that time now starts to run fresh under the bankruptcy notice.

[11]     I also record that I have heard this application in Court and I have not heard it sitting in Chambers.

[12]     Mr Harrison also seeks an order for costs on the present application.  I award costs in favour of Indiana Publications (NZ) Ltd against Mr Prasad on a 2B basis,

together with disbursements as approved by the Registrar.

R M Bell

Associate Judge