Khan v Reid

[2011] NZCA 22

IN THE COURT OF APPEAL OF NEW ZEALLAND

CA242/2010
[2011] NZCA 22

BETWEEN  SHER AFZAL KHAN
Applicant

AND  KEITH WILLIAM REID
Respondent

Hearing:         15 February 2011

Court:             Glazebrook, Arnold and Harrison JJ

Counsel:         Applicant in person
M Colthart for Respondent

Judgment:      18 February 2011 at 10.30 am

JUDGMENT OF THE COURT

A        The application for an extension of time for filing the case on appeal and seeking a fixture is declined. 

BThe applicant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Arnold J)

1. The respondent, Mr Reid, served a bankruptcy notice on the applicant, Mr Khan, on 20 January 2010.  The notice related to an unsatisfied order for costs that had been made in favour of Mr Reid by Allan J when he struck out a claim which Mr and Mrs Khan had brought against Mr Reid, on the ground that it was time-barred.[1]  Mr Reid, a barrister, had acted for Mr Khan’s wife in respect of her dealings with the Accident Compensation Corporation and Mr and Mrs Khan alleged that he had acted negligently.

   [1]      Khan v Reid HC Auckland CIV-2009-404-1721, 30 October 2009.

2. Mr Khan filed an application to set aside the notice within the 10 working day period provided for in s 17(4) of the Insolvency Act 2006 (the Act).  Unfortunately he did not file his affidavit in support until 8 March 2010, after the expiry of the ten day period.  Lang J, having considered the decision of Associate Judge Gendall in Re Memelink ex parte SANCO (NZ) Ltd,[2] struck out the application on the ground that it was not filed within the statutory time period.[3]

   [2]      Re Memelink ex parte SANCO (NZ) Ltd HC Wellington CIV-2008-485-2691, 10 March 2009.

   [3]      Reid v Khan HC Auckland CIV-2009-404-8543, 11 March 2010.

3. On 7 April 2010 Mr Khan filed a notice of appeal against Lang J’s decision.  However, he did not advance the appeal.  On 8 September 2010 the Registry wrote to him drawing his attention to the timing requirements in r 43 of the Court of Appeal (Civil) Rules 2005 in relation to filing the case on appeal and applying for a fixture.  On 8 October 2010 Mr Khan filed an application for an extension of time to take these steps.  Unfortunately, he used the file number of another appeal that he had before the Court and this application was accordingly misfiled.  The Registry then sent a letter advising that the six month period provided for in r 43 had expired and accordingly an application for extension of time had to be made within the three month period.  Strictly speaking this letter was unnecessary as an application had already been made.

4. In the meantime, after Mr Khan’s application to set the bankruptcy notice aside was struck out, Mr Reid applied to have him adjudicated bankrupt.  That application was adjourned to allow Mr Khan to pursue his appeal against Allan J’s judgment striking out the claim against Mr Reid.  The Khans had filed the appeal some four months out of time and so had to seek an extension of time within which to appeal.  This Court declined to grant an extension.[4]  The Court considered that no satisfactory explanation had been given for the delay and that, in any event, the appeal was hopeless.

   [4]      Khan v Reid [2010] NZCA 391.

5. Following the delivery of this judgment on 23 August 2010, Mr Reid pursued his bankruptcy application and Mr Khan was declared bankrupt on 7 September 2010.

6. In light of this background, the present application must fail.  First, as Mr Khan has been adjudicated bankrupt, there is no point in his pursuing an appeal to set aside the bankruptcy notice.  The matters which would have formed the basis of an application to set aside were relevant to his bankruptcy adjudication and have now been conclusively resolved against him, in particular the claim against Mr Reid.  Second, s 61 of the Act provides that an adjudication is final and binding unless there is an appeal against it.  An attempt to set aside the bankruptcy notice at this stage is inconsistent with this.

7. Accordingly, the application for an extension of time to file the case on appeal and apply for a fixture is declined.  The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

Solicitors:

C K Lyon, Auckland for Respondent