Ingenious Asset Management Limited v McConnon - [2025] NZHC 1269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-1719

[2025] NZHC 1269

BETWEEN INGENIOUS ASSET MANAGEMENT LIMITED
Applicant

AND

SIMON McCONNON

First Respondent

JOHN McCONNON

Second Respondent

Hearing: 28 April 2025

Appearances:

Gautam Jindal for the Applicant

Kirsten Maclean for the Respondents

Judgment:

23 May 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to set aside a statutory demand]

This judgment was delivered by me on 23 May 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Ormiston Legal, Auckland, for the Applicant
D’arcy Thomson Law (Kirsten McLean), Christchurch, for the Respondents

Copy for:
M Wallace, Freedom Chambers, Christchurch, for the Respondents

INGENIOUS ASSET MANAGEMENT LIMITED v McCONNON [2025] NZHC 1269 [23 May 2025]

Introduction

[1] Ingenious Asset Management Limited (Ingenious) applies to set aside a statutory demand issued by Simon McConnon and John McConnon (together the respondents) for an amount of $9,383.50 on 11 July 2024.

[2] The statutory demand arose in respect of a judgment by Associate Judge Brittain on 11 July 2024, awarding the respondents costs (the Costs Judgment).1 Pursuant to s 290 of the Companies Act 1993, Ingenious applies for the statutory demand to be set aside.

Background

[3] There is a history of proceedings between the parties. I largely adopt Muir J’s summary of the facts, below.2

[4] Global Dairy Ltd (in liq) (GDL) was placed into liquidation in March 2020. In proceedings CIV-2023-404-2103 (the Recovery Proceedings) the defendants are GDL’s three directors, including the respondents and two liquidators. GDL’s three creditors assigned their unsatisfied claims in GDL’s liquidation to Ingenious under deeds of assignment (deeds of assignment).

[5] Ingenious’ statement of claim dated 6 September 2023 advances 11 causes of action premised on insolvent/reckless trading by the directors and unreasonable fees claims by the liquidators and/or failure on their part to investigate the directors.

[6] On 21 March 2024 Associate Judge Brittain determined an application by the defendants for security for costs, in favour of the defendants.

[7] On the application of Ingenious this judgment was recalled on the 20 May 2024, and reissued on 31 May 2024 with one amended paragraph. Costs were reserved. The parties were subsequently unable to agree on costs following the

1 Ingenious Asset Management Ltd v McConnon [2024] NZHC 1888.
2 Ingenious Asset Management Ltd v McConnon [2024] NZHC 2982 at [3] to [5].

judgment. The Costs Judgment dated 11 July 2024 awarded costs against Ingenious, in favour of all the defendants.

[8] The jurisdiction of an Associate Judge to deal with the Recovery Proceedings is being challenged by Ingenious under s 26(2) of the Senior Courts Act 2016 (the Jurisdictional Challenge). Muir J delivered his judgment on 14 October 2024 finding that the determinations by Associate Judge Brittain in the Recovery Proceedings were within an Associate Judge’s jurisdiction and accordingly Ingenious’ application for a stay of all orders,…

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.

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Details

Case: [2025] NZHC 1269
Decision Date: 23 May 2025

CaseChat Overview and Summary

Ingenious Asset Management Limited has applied to the High Court of New Zealand to set aside a statutory demand issued by Simon and John McConnon for $9,383.50. The statutory demand was issued following a judgment awarding the respondents costs. The central legal issues before the court were whether there was a substantial dispute over the debt and whether Ingenious had a counterclaim or set-off exceeding the statutory demand. The court held that there was no substantial dispute regarding the debt due to the absence of a stay of enforcement of the Costs Judgment. However, the court found that Ingenious had a reasonable argument that it had a counterclaim against the respondents exceeding the statutory demand, and thus the statutory demand should be set aside. The Amalgamation of Ingenious with Health & Nutrition Dairy Trust Ltd was considered but deemed unnecessary to address as the counterclaim argument was sufficient to set aside the statutory demand. The court granted Ingenious' application to set aside the statutory demand and ordered that costs should follow the event, with counsel to endeavour to agree on costs or file memoranda if agreement could not be reached.

Orders