Kiwibank Ltd v Hutchin - [2015] NZHC 1518

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000081

CIV-2015-404-000067 [2015] NZHC 1518

BETWEEN
KIWIBANK LIMITED

Creditor

AND

ELIZABETH SISIFA HUTCHIN First Judgment Debtor

MARTIN NOEL HUTCHIN Second Judgment Debtor

Hearing: 9 June 2015

Appearances:

Bruce Pamatatau for the Creditor
Alexander Shinkarenko for the First Judgment Debtor
John Cox for the Second Judgment Debtor

Judgment:

2 July 2015

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by me on 2 July 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

KIWIBANK LIMITED v HUTCHIN & ANOR [2015] NZHC 1518 [2 July 2015]

Introduction

[1] Kiwibank Limited (“the Bank”) obtained summary judgment against both debtors (Mr and Mrs Hutchin) in the High Court following an opposed summary judgment application heard before Andrews J. Mr and Mrs Hutchin were represented by counsel, Mr Cox, who appears for Mr Hutchin in the present proceedings. Mr Cox has been involved throughout the proceedings and before. On
8 December 2014 judgment was given in favour of the Bank in the sum of

$241,978.69 together with interest and costs.

[2] Mr and Mrs Hutchin have taken no steps to appeal or apply to set aside this judgment. Bankruptcy notices were served through counsel on 30 January 2015. No steps were taken by Mr or Mrs Hutchin. Acts of bankruptcy were thus committed. The Bank then filed and served applications for adjudication.

[3] Neither Mr nor Mrs Hutchin took any formal steps in opposing the Bank’s applications until the day before the first call of this matter on 18 March 2015 when Mrs Hutchin, who by then was separately represented, served a notice of intention to oppose and filed a brief, pro-forma affidavit in support. She later filed a more fulsome second affidavit.

[4] Mr Hutchin has since filed and served a notice of intention to oppose and a very abbreviated affidavit in support. Mr Hutchin’s affidavit is silent on any explanation of his position.

[5] The debt remains unpaid.1

Background

[6] The background is fully set out in the judgment of Andrews J.2

[7] In 2000 Mr and Mrs Hutchin borrowed $544,000 from AMP Bank Limited

(“AMP”) for a term of 25 years. The lending was secured by a registered first

1 Solicitors’ certificates confirm that as at 9:00am on 9 June 2015 the debt remains outstanding
and no payment has been received in reduction of the outstanding amount.
2 Kiwibank Ltd v Hutchin [2014] NZHC 3122.

mortgage over their properties at Seaview Road, Glenfield; Emily Place, Auckland; and 125A Birkdale Road, Birkdale. The Seaview Road property was sold in November 2002. The proceeds of sale were applied to reduce AMP’s lending to
$246,000. The mortgage over the Seaview Road property was discharged.

[8] In 2004, the Hong Kong and Shanghai Banking Corporation (“HSBC”) acquired AMP’s Home Loan Portfolio which included Mr and Mrs Hutchin’s borrowings.

[9] On 8 June 2004 the first mortgages over the properties at Emily Place and Birkdale Road were discharged and…

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: [2015] NZHC 1518
Decision Date: 2 July 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Kiwibank Ltd v Hutchin was heard. The Bank had obtained summary judgment against Mr and Mrs Hutchin in a previous proceeding, and they now sought adjudication of bankruptcy against the debtors. The legal issues before the court were whether it would be just and equitable to refuse to make an order of adjudication, and if not, whether the orders sought should be stayed. The court considered the circumstances in which the debt was incurred, the availability or absence of assets, the ability of the debtor to repay, the actions and wishes of the creditor, and issues of public interest and commercial morality. The court found that the debt arose from a commercial transaction and was not beyond the control of the debtors. There were matters which would warrant investigation by the Official Assignee, particularly in relation to Silverdale. The debtors had failed to persuade the court that an order of adjudication should not be made. The court made orders adjudicating both Mr and Mrs Hutchin bankrupt and awarded interest on the judgment debt. Indemnity costs were to be fixed.

Orders