Konishi v Jin - [2016] NZHC 2702

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-992 [2016] NZHC 2702

IN THE MATTER of the Insolvency Act 2006

AND

of the bankruptcy of RUJING JIN

BETWEEN

YASUKI KONISHI AND MAKIKO KONISHI

Judgment Creditors

AND

RUJING JIN Judgment Debtor

Hearing: 20 October 2016

Appearances:

Mr D B Hickson for Judgment Creditors
Mr Y Lee for Judgment Debtor

Judgment:

11 November 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
11.11.16 at 3.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

KONISHI & ANOR v JIN [2016] NZHC 2702 [11 November 2016]

[1] Ms Jin (the judgment debtor) was served with a bankruptcy notice which was issued by Mr and Mrs Konishi (the judgment creditors). The bankruptcy notice seeks to enforce costs orders that have been made in the course of a disastrous series of cases between these two parties.

[2] Specifically, the bankruptcy notice which was filed in the High Court on 12

May 2016 required the judgment debtor to pay the sum of $8,358 on a final judgment that the judgment creditors obtained against her in the High Court at Auckland on 23 July 2013.

[3] The effect of the bankruptcy notice was that the judgment debtor was informed that unless she paid the amount specified in the bankruptcy notice, she would be deemed to have committed an act of bankruptcy.

Background

[4] The original dispute arose out of an attempted sale of a residential property in Auckland by the judgment debtor. A dispute broke out over the fact that the property was cross-leased and the judgment creditors declined to settle. They considered that they were entitled to a freehold title to the property. The judgment creditors had paid a deposit of $30,000. They sought to recover the money from the judgment debtor in proceedings which they commenced in the District Court but were ultimately unsuccessful.

[5] The full history of the proceeding does not need to be set out in detail here. It is summarised in a judgment that Gilbert J gave on 28 May 2014:1

[6] The respondents, Mr and Mrs Konishi, entered into an agreement in July 2010, to purchase a new house in Auckland from the first appellant, Ms Jin. The agreement was in the form approved by the Auckland District Law Society (Eighth Edition). Mr and Mrs Konishi paid a deposit of $30,000 which is held by the real estate agent as stakeholder. The balance of the purchase price was to be paid on settlement, following issue of a new title.

[7] The agreement contained a term requiring Ms Jin to remedy any defects or other faults notified by Mr and Mrs Konishi during the maintenance period, being 90 days from settlement.

1 Jin v Konishi [2014] NZHC 1150, (2014) 22 PRNZ 133.

[8] The agreement did not settle. In January 2011, Mr and Mrs Konishi purported to avoid the agreement on the basis that Ms Jin had not…

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.

Continue reading Konishi v Jin

Details

AGLC: Konishi v Jin [2016] NZHC 2702
Case: [2016] NZHC 2702
Decision Date: 11 November 2016

CaseChat Overview and Summary

The case of Konishi v Jin involves a dispute between the judgment debtors, Yasuki Konishi and Makiko Konishi, and the judgment debtor, Rujing Jin. The judgment creditors are seeking to enforce costs orders made in previous proceedings between the parties, culminating in a bankruptcy notice issued by the judgment creditors. The primary issue before the court was whether the bankruptcy notice should be set aside. The legal issues included the possibility of a costs order under a pending judicial review proceeding and set-off considerations.

The court rejected the argument that a costs order could be obtained under a pending judicial review proceeding, as there was no counterclaim or cross-demand in existence. Furthermore, the court did not find it likely that the judicial review proceedings would result in a costs order in favour of the judgment debtor. On the set-off issue, the court determined that there was no set-off available to the judgment debtor and, therefore, no ground for setting aside the bankruptcy notice.

In conclusion, the court dismissed the application to set aside the bankruptcy notice, finding that there was no basis for doing so. The costs orders made in the previous proceedings were upheld and remained in place, with no set-off available to the judgment debtor.

Orders