Kidd v Mitchell

[2017] NZHC 1101

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2016-404-001781

[2017] NZHC 1101

BETWEEN

MICHELLE DIANE KIDD

Judgment Creditor

AND

GORDON MARCUS MITCHELL

Judgment Debtor

Call:

25 May 2017

Appearances:

E Telle for the Judgment Creditor

G M Mitchell in person the Judgment Debtor

Judgment:

25 May 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

M D KIDD v G M MITCHELL [2017] NZHC 1101 [25 May 2017]

[1]                 The judgment creditor applies for an order adjudicating the judgment debtor (Mr Mitchell) bankrupt. The judgment creditor obtained judgment against Mr Mitchell in the District Court in the amount of $7,584.50. That judgment was entered in the outcome of the judgment creditor’s application for a restraining order against Mr Mitchell. The judgment creditor and Mr Mitchell are neighbours.

[2]                 A bankruptcy notice was served on Mr Mitchell on 7 November 2016 and subsequently an application for adjudication was served.

[3]                 The matter was first called on 27 April 2017 before Associate Judge Sargisson. At that time the matter was relisted for call before me today. Her Honour’s minute records that Mr Mitchell sought an adjournment. Her Honour noted that Mr Mitchell appeared to suggest he was solvent but was not willing to pay the debt and that the Court should hear his argument that an order for adjudication should not be made against him. Noting he was without legal counsel Her Honour directed Mr Mitchell to file a notice of opposition and affidavit in support of opposition by 5:00pm, 18 March 2017. Her Honour refused Mr Mitchell’s request for more time. He said he was seeking a review of his legal aid application, he having been refused a grant of aid for, the Court assumes, representation before this Court.

[4]Her Honour noted:

It is clear from what he [Mr Mitchell] has said to the Court that he ‘can go to the bank and get the money out to pay for a lawyer’.

[5]Her Honour added:

It is for Mr Mitchell to decide whether he wants to spend money on a lawyer [and it would obviously be sensible for him to do so], but if he does not want to do that, that is not a sufficient reason to grant a more lengthy adjournment.

[6]                 On 19 May 2017 Mr Mitchell filed a ‘Memorandum Seeking Leave To Suspend Submissions of Opposition”. His memorandum enquired whether the Court had received his doctor’s medical certificate.

[7]                 The Court’s minute dated 23 May 2017 responded noting, inter alia that a copy of a medical certificate had been received, the doctor having examined Mr Mitchell on 18 May 2017, and requesting “an extension of his report deadline for one to two weeks as Mr Mitchell is still quite unwell”.

[8]                 The Court’s minute also noted that nothing had since been received from Mr Mitchell.

[9]                 By Mr Mitchell’s response that same day he requested the matter be transferred out of the Auckland Regional area on the grounds “of perceived existence of elements of bias”.

[10]              The Court’s minute in response confirmed to him that the matter would be called at 10:00am on 25 May 2017 as scheduled. The minute noted two options that appeared to be available:

(a)To make the order for bankruptcy as sought;

(b)To adjourn the matter if the Court thought further time ought to be available to Mr Mitchell to advance a defence.

[11]              Considerations

[12]              The judgment of the District Court has not been appealed and nor has any application been made to set it aside.

[13]              Mr Mitchell considers conspiracy or bias to have influenced the outcome of his Court appearances. There is no evidence offered in support of these claims other than Mr Mitchell’s perceptions of dissatisfaction with the District Court hearing of these issues. Mr Telle submits these allegations are without merit.

[14]              Mr Telle informs the Court that since the making of the restraining order Mr Mitchell has since been criminally prosecuted and convicted for a breach of that order.

[15]              As Judge Sargisson noted by her minute of 27 April 2017 it is not clear whether Mr Mitchell relies on claims of solvency, or he relies on equitable grounds.

[16]              The Court is satisfied that sufficient leniency and opportunity has been provided to Mr Mitchell to pay the debt or to provide reasonable evidence in support of an entitlement to equitable consideration.

[17]              Instead he is constantly offering reasons why the matter should be further adjourned – grounds upon which he provides no acceptable purpose for.

Conclusions

[18]              It appears Mr Mitchell refuses to accept that he has any debt responsibility to the plaintiff. Furthermore he provides insufficient reasons to encourage the Court to delay determination of the bankruptcy application any further. The plaintiff is entitled to the order she seeks. Equity does not provide the Court with a sufficient reason to do anything other than grant that application.

Judgment

[19]              There is an order adjudicating Gordon Marcus Mitchell bankrupt. The time of this order is 11:00am.

Associate Judge Christiansen