Krukziener v Hanover Finance Limited (Previously known as Elders Finance Limited) HC Auckland CIV 2007-404-002896
[2008] NZHC 2496
•12 August 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2007-404-002896
BETWEEN ANDREW MARK KRUKZIENER Judgment Debtor
ANDHANOVER FINANCE LIMITED (PREVIOUSLY KNOWN AS ELDERS FINANCE LIMITED)
Judgment Creditor
Hearing: 16 November 2007
Counsel: R B Hucker/A J Cumming for Judgment Debtor
L A O'Gorman/S R Willetts for Judgment Creditor
Judgment: 12 August 2008 at 3:00pm
JUDGMENT OF ASSOCIATE JUDGE ABBOTT
This judgment was delivered by me on 12 August at 3:00pm pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Hucker & Associates, PO Box 3843, Auckland 1001 for Judgment Debtor
Buddle Findlay, PO Box 1433, Auckland 1140 for Judgment Creditor
ANDREW MARK KRUKZIENER V HANOVER FINANCE LIMITED (PREVIOUSLY KNOWN AS ELDERS FINANCE LIMITED) HC AK CIV 2007-404-002896 12 August 2008
[1] Hanover Finance Limited obtained summary judgment against Mr A M Krukziener on 5 April 2007 for the sum of $4,159,386.61. The judgment debt represents the balance then owed to Hanover Finance under a loan made to two of Mr Krukziener’s companies, which Mr Krukziener had guaranteed (the guaranteed debt).
[2] Hanover Finance has served a bankruptcy notice on Mr Krukziener demanding payment of the judgment sum. Mr Krukziener has applied to set aside the bankruptcy notice. He says he has a counterclaim, set-off or cross demand against Hanover Finance and other companies in the Hanover Group of companies which exceeds the judgment debt and which could not be set up in the summary judgment proceeding. He says that it would be an abuse of process to allow the bankruptcy notice to stand, and be acted upon, before that claim has been determined. The alleged cross-claim is said to arise out of both a failure to account under a settlement of earlier loan transactions and breach of a joint venture arrangement entered into with the objective that the Krukziener interests would apply their share of the projected profit in reduction of the guaranteed debt. Mr Krukziener also relied on the ground that there was an appeal pending against the judgment, but that appeal has been dismissed since the hearing of this application.
[3] Hanover Finance says that Mr Krukziener does not have a counterclaim, set- off or cross demand against it which exceeds the judgment debt and which could not be set up in the summary judgment proceedings. Hanover says it would not be an abuse of process to allow bankruptcy to proceed as Mr Krukziener either raised his alleged matters of counterclaim (unsuccessfully) in the summary judgment proceeding or could have done so.
[4] The issues which the Court must determine in this application are:
a) whether Mr Krukziener has a counterclaim, set-off or cross demand which exceeds the judgment sum and which he was unable to raise in the summary judgment proceeding; and if not
b)whether there are any circumstances which justify the Court exercising its inherent jurisdiction to set aside or stay the bankruptcy notice.
Relevant background
[5] Mr Krukziener and his companies have a history of borrowing from Hanover Finance dating back to the mid 1990s (when Hanover Finance was known as Elders Finance Limited).
[6] In November 2000 Mr Krukziener and several of his companies entered into a settlement agreement with Hanover Finance in relation to their indebtedness at that time. As part of that settlement Mr Krukziener’s interests transferred a building known as Customhouse to Hanover (with a view to onsale and to the sale proceeds being applied against the debt). This still left part of the debt outstanding. Mr Krukziener and his related companies entered into a further loan agreement with Hanover to finance repayment of that residual debt. This further loan was repaid in November 2002 by the loan which was the subject of the summary judgment proceeding (the November 2002 loan). Mr Krukziener and two of his companies signed the loan agreement for the November 2002 loan as guarantors, as well as a separate deed of guarantee.
[7] As part of the refinancing arrangements made in November 2002 Mr Krukziener and one of his companies, Wolfe Developments Limited (Wolfe) (which was one of the guarantors of the November 2002 loan), entered into agreements with three companies in the Hanover Group of companies (but not Hanover Finance) for the joint development of a multi-storey building. This was to be known as The Wolfe. It was to be developed on land at 13 and 15 Albert Street, Auckland. The three Hanover group companies were Axis Wolfe Developments (Axis Wolfe), Axis Property Group Holdings Limited and Hanover Group Limited (Hanover Gp). The profits of the development project were to be shared between the Krukziener interests and the Hanover interests in the ratio 70/30.
[8] The joint development did not proceed. There are differences of view between the Krukziener interests and Hanover interests over this. The Krukziener interests contend that the Hanover interests unreasonably rejected viable proposals put forward for the development and that this breached obligations under the project management agreement which governed the development.
[9] Axis Wolfe had purchased the land at 13 and 15 Albert Street in anticipation of the joint development, with the assistance of a loan from Hanover Finance. When the joint development project was terminated Axis Wolfe sold the land to a third party. Axis Wolfe took a transfer of a property at 22 Ngapipi Road, Orakei as part consideration for that sale, and gave Hanover Finance a mortgage over the property as security for what remained of the loan taken out to buy 13 and 15 Albert Street. Hanover Finance later sold the Ngapipi Road property by mortgagee sale. The Krukziener interests contend that that sale was at under value. Wolfe lodged a caveat against Ngapipi Road claiming an interest in it by virtue of the joint venture. The caveat was discharged by this Court in September 2006, on Hanover Finance’s application on the grounds that Wolfe did not have a reasonably arguable beneficial interest in the property.
[10] Following the termination of the proposed joint development of the Albert Street properties, Hanover Finance sought repayment of the November 2002 loan. When the borrowers failed to meet the demand, Hanover Finance issued the summary judgment proceeding against Mr Krukziener as guarantor. He defended the application for summary judgment unsuccessfully.
Preliminary point – late affidavits
[11] When the present application first came before the Court counsel for Mr Krukziener sought leave to file further affidavits in support. He was given leave to do so notwithstanding opposition from counsel for Hanover Finance. Mr Krukziener was directed to file any further affidavits by 10 August 2007. Hanover Finance was given a timetable for any affidavits in reply.
[12] Mr Krukziener filed two further affidavits on 16 November 2007, the day before the defended hearing (they were served on Hanover Finance the day before that). One of the affidavits was by Mr Krukziener. It annexed a copy of a statement of claim filed in this Court on 15 August 2007 by himself and Wolfe. The defendants are Hanover Gp, Hanover Finance and Axis Wolfe. The statement of claim pleads six causes of action:
a) Breach by Hanover Gp and Axis Wolfe of an obligation of good faith arising out of the project management agreement (unreasonable rejection of the redevelopment proposals submitted by Mr Krukziener and Wolfe in respect of the Albert Street properties);
b)Breach of contract by Axis Wolfe in respect of obligations under the project management agreement to arrange appropriate funding for the purchase of the Albert Street land and for the project generally;
c) Breach by both Hanover Gp and Axis Wolfe of an obligation of good faith in respect of the sale of Ngapipi Road (by selling to a friendly party at an under-value);
d)Breach by Hanover Finance of its duty as mortgagee to obtain the best price reasonably obtainable on sale of Ngapipi Road;
e) Failure by Hanover Finance to account properly for the sum due to Mr
Krukziener on the sale of Customhouse in October 2001; and
f) Failure by Axis Wolfe to account to Wolfe for its share of profit under the project management agreement.
[13] The second affidavit was by an expert accountant. He set out the basis of Mr Krukziener’s claims that he and his interests were entitled to $785,090 following the sale of Customhouse, rather than $279,061 as credited (at the time of the refinancing in November 2002), and to $2,921,252 being the projected profit from the proposed joint development of the Albert Street properties (on the basis of a feasibility study
prepared in December 2003). He produced calculations to show that these sums, had they been paid as and when expected, would have cleared the loan and left the Krukziener interests in credit to the sum of $86,363.
[14] Counsel for Mr Krukziener justified the late filing on the grounds that the expert’s report had only just become available, and the production of the statement of claim and other matters raised by Mr Krukziener were merely an updating of matters already raised. Counsel for Hanover Finance did not oppose leave being given for late filing, but asked that its rights be reserved. I granted leave for the affidavits to be read, but reserved any issue of costs in relation to late filing. I note, however, that as a result of the late filing Hanover Finance was not in a position to exercise its right of reply.
Principles
[15] The Court’s jurisdiction to set aside the bankruptcy notice derives from s 19(1)(d) of the Insolvency Act 1967, which provides that a judgment debtor commits an act of bankruptcy when he or she fails to comply with the requirements of a bankruptcy notice unless the debtor satisfies the Court:
... that he has a counterclaim, set-off, or cross demand which equals or exceeds the amount of the judgment sum or sum ordered to be paid, and which he could not set up in the action in which the judgment was obtained, or the proceedings in which the order was obtained.
[16] The application is made by interlocutory application, pursuant to r 830 of the High Court Rules prior to 3 December 2007: Re Wise, ex parte Benecke (HC AKL, B227-95 and B228-95, 21 June 1995, Master Kennedy-Grant). The Insolvency Act
1967 and High Court Rules in force prior to 3 December 2007 continue to apply to this proceeding notwithstanding their subsequent repeal and replacement: section
444 Insolvency Act 2006.
[17] The Court also has inherent jurisdiction to set aside a bankruptcy notice in order to prevent an abuse of process: Re Wise; Re Holloway, ex parte Darby (HC HAM CIV 2005-419-1085, 8 December 2005, Associate Judge Faire).
Available counterclaim, set-off or cross demand
[18] Mr Krukziener’s first argument is that the proceeding which he and Wolfe filed satisfies the test under s 19(1)(d). To succeed on this argument he must show that the proceeding provides him with a genuine triable counterclaim, set-off or cross demand, which he could not have set up in the summary judgment proceeding: Sharma v ANZ Banking Group (New Zealand) Limited (1992) 6 PRNZ 386 (CA).
[19] Counsel for Mr Krukziener submitted that the claim filed on 15 August 2007 satisfied this test because:
a) Mr Krukziener and his interests were entitled to a further $506,028 from the Customhouse settlement, and to have that applied against the indebtedness as at October 2001 (the date that the sale of Customhouse settled) rather than November 2002 (when the lesser credit of $279,061 was given);
b)But for the conduct of the Hanover parties, Mr Krukziener and his interests, would have had the benefit of profits from the Albert Street development of $2,921,252 being set against the loan (and thus reduced his obligation under the guarantee);
c) The evidence of the expert accountant confirmed that if the Customhouse credit had been applied at the time of the sale, and the Albert Street development had gone ahead as proposed, the loan would have been repaid in full; and
d)Mr Krukziener and his interests also had an additional claim arising out of the sale of the Ngapipi Road property.
[20] In order to meet the requirements of s 19(1)(d) Mr Krukziener has to show that there is a mutuality of both parties and circumstances in respect of the opposing claims: Re Elvin, ex parte Sandelin [1990] 3 NZLR 124, where Gallen J stated (at
126-127):
There must be some coincidence, some nexus or correlation between the circumstances out of which the opposing claims arise, some relationship between the parties and this must to some extent be a pragmatic decision which needs to be considered in relation to each particular case. I do not think that the decisions as to the nature of counter-claims, set-offs or cross- claims in other contexts, necessarily assist. The purpose of the section is to deal with a lis which exists as between two comparable persons. Clearly it would be unjust if one having succeeded in obtaining a judgment against another, were able to enforce that without reference to other related claims which might substantially reduce the obligation to pay.
[21] The components of Mr Krukziener’s cross-claim (a further credit in respect of Customhouse, and breach of the joint venture) need to be considered separately. Dealing first with the claim in respect of Customhouse, although there appears to be a correlation of parties I am doubtful that there is the requisite nexus or correlation in the transactions. The difference between the parties over the credit in respect of Customhouse relates to the expenses which were deductible from the sale proceeds. A summary of amounts outstanding in respect of the earlier loan was attached as an appendix to the agreement for the November 2002 loan. It provides expressly for total payments received, including Customhouse proceeds of $279,061.54. Mr Krukziener was a party to that agreement, which included a specific waiver (clause
13.2(f)) of all defences that might be available to him. Mr Krukziener has not given any explanation for his failure to raise this point before now. I infer that he was content to accept that the loan amount agreed in November 2002 gave him full and proper credit for sums due to him or his interests under the 2000 settlement.
[22] Mr Krukziener also has a difficulty in relation to the claim for breach of the Albert Street joint venture (including any claim that this flowed through to the Ngapipi Road property). The only possible cross-over between the November 2002 loan and the joint venture was the provision for profits to be paid in reduction of the loan. Hanover Finance was not a party to the property management agreement or any of the other documents associated with the joint venture. Its sole involvement was as lender to Axis Wolfe for the purchase of the Albert Street land. That was an entirely separate loan transaction to the November 2002 loan. This was the view taken by Associate Judge Sargisson in giving summary judgment (Hanover Finance Limited v Krukziener HC AKL CIV 2006-404-1667, 5 April 2007 at [36] – [40]). Any possible claim for mutuality is also ruled out by Mr Krukziener’s waiver of his
right to set-off, which he gave both in the loan agreement and his separate guarantee of the November 2002 loans: Grant v NZMC Limited [1989] 1 NZLR 8.
[23] Mr Krukziener has an even greater difficulty with the requirement under s 19(1)(d) to show that he was unable to set up his claim in the summary judgment proceeding. The test which he must satisfy is to be found in the Court of Appeal’s decision in Clark v UDC Finance Limited [1985] 2 NZLR 636 and in Hardie v Booth [1992] 1 NZLR 356. The following passage at page 361 from the judgment of Tipping J in Hardie v Booth summarises the requirement:
In Clark v UDC Finance Ltd [1985] 2 NZLR 636 Casey J held that an applicant under r 41 must show: (1) that he has a genuine triable counterclaim, set-off or cross-demand; and (2) that it is such that he could not have set it up on the following passage from the decision of Lockhart J in Re Brink, ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 15 p 437:
“The words ‘that he could not have set up in the action or proceeding in which the judgment or order was obtained’ mean ‘which he could not by law set up on the action’: see Re Jocumsen [(1929) 1 ABD 82] at p 85; re a Debtor [1914] 3 KB 726, per Avory J, at 730; Re Stokvis (1934) 7 ABC 53, especially per Lukin J at 57, where His Honour said: ‘I take a counter- claim, set-off, or cross demand which could not be set up as one which, from point of time or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up on the particular case in which judgment was obtained … Mere failure to take advantage of the opportunity can hardly be said to be inability.”
The inability of which r 41(3) speaks is primarily a legal inability. Factual inability is also available but that requires some cogent circumstance. To take a looser view would be to frustrate the purpose of the rule which is obviously designed to ensure that all issues between the parties both ways be tried at once and that a bankruptcy notice only be set aside if the debtor has a cross-claim which either legally or factually could not be set up in the same proceedings. As Casey J said in Clark’s case the primary emphasis is on the legal nature of the impediment and therefore any factual grounds for the suggestion that the cross-claim could not be set up must be carefully scrutinised.
[24] Counsel for Mr Krukziener relied on the paragraphs [36] - [40] of the judgment of Associate Judge Sargisson (cited above at [22]) to submit that Mr Krukziener had been unable to set up his cross-claims in the summary judgment. I do not accept that that is the correct reading of Associate Judge Sargisson’s finding. Her finding was that Mr Krukziener did not have a claim against Hanover Property under the joint venture because Hanover Finance was not a party to it. That remains the position. It is not a case of Mr Krukziener having a claim which he was unable
to bring. Similarly, I find there is no factual inability to bring the claims. He raised the claim in respect of the joint venture (unsuccessfully). It was open to him to raise the claim in relation to the Customhouse proceeds. He did not do so.
[25] The claim in respect of alleged failure to obtain best possible price in respect of the sale of Ngapipi Road similarly fails on the grounds that it was raised and rejected both in the caveat proceeding and in the summary judgment proceeding (counsel for Hanover Finance addressed it in detail in her submissions in the summary judgment hearing).
[26] Weighing all of these factors, Mr Krukziener has not persuaded me that he has a cross-claim, set-off, or cross-demand equal to or in excess of the judgment sum which he could not have set up in the summary judgment proceeding.
The inherent jurisdiction
[27] The second aspect of Mr Krukziener’s claim is that I should exercise my inherent jurisdiction to set the bankruptcy notice aside, on the grounds that there is such a closeness of connection between the parties and the transactions that it would be an abuse of process to allow the bankruptcy notice to stand, or bankruptcy proceedings to continue, before the cross-claims have been determined.
[28] Counsel for Mr Krukziener relies on the decision in Re Wise where the Court set out the nature of the inherent jurisdiction as follows (at page 6):
Having considered the matter further, I have come to the following conclusions:
(a) I do have jurisdiction to grant relief to the debtors;
(b) The jurisdiction is the inherent jurisdiction of the Court to control the abuse of its process;
(c) The grounds on which the jurisdiction may be exercised are:
(i) procedural defect in the obtaining of the judgment on which the bankruptcy notice is based; and/or
(ii) the existence of arguable grounds of defence to the claim for which judgment was given;
(d) The grounds on which the jurisdiction may be exercised may extend beyond those stated in (d) to any ground on which the Court feels it necessary to intervene to prevent injustice but I make no finding on that point in this judgment;
(e) The correct procedure for invoking the inherent jurisdiction of the Court is not the filing of an affidavit under r41 but the filing of an interlocutory application to set aside the bankruptcy notice on one of the grounds stated in (c) above or, possibly, the broader ground stated in (d) above;
[29] The first two circumstances identified by Master Kennedy-Grant in Re Wise call into question the judgment itself. A procedural defect suggests an element of unfairness in letting the judgment stand. The “arguable grounds of defence” suggests a substantive reason for questioning the soundness of the judgment (hence the case law built up around stay pending an appeal, but perhaps also a defence that had not been identified at the time of the underlying judgment or which has emerged since). In all of these cases there is an issue as to the safety of the underlying judgment. The Court will intervene in those cases on the grounds that it would be an abuse to allow a bankruptcy proceeding to be pursued if there is good reason to doubt the judgment on which it is based. There is no suggestion in the present case of a procedural defect, a legitimate defence being overlooked, or (now that the appeal has been determined) that there was any error in the judgment.
[30] I turn then to consider the third possible grounds contemplated in Re Wise, namely that there are some circumstances in the case which lead the Court to the view that it is necessary to intervene to prevent injustice. This was not considered further in Re Wise because the grounds relied on in that case amounted to a direct attack on the judgment .
[31] Counsel for Mr Krukziener argued that even if Mr Krukziener could not claim a set-off, the Court should nevertheless recognise the cross-claim against Hanover Gp, Hanover Finance and Axis Wolfe. He argued that the evolving loan history, the close relationship between Hanover Finance and Hanover Gp and Axis Wolfe, and the objective of using profits from the joint venture to repay the loan, requires that the bankruptcy notice be set aside or stayed pending determination of the cross-claim in order to prevent injustice. Counsel invited me to adopt by analogy the principles applicable for setting aside a statutory demand against a company, and
in particular the “catch all” provision in s 290(4)(c) of the Companies Act 1993 for setting aside “on other grounds”. In that respect he referred me to Siteworks Limited v IH Wedding & Sons Limited (1998) 8 NZCLC 261,704 where Master Kennedy- Grant set aside a statutory demand on the basis of a close association between the creditor, the debtor and another company related to the creditor. Although the debtor did not have a direct set-off available, Master Kennedy-Grant took into account a three and half year course of business under which a practice had developed whereby the debtor set off debts owed to it by the creditor’s related company against debts it owed to the creditor.
[32] The use of the Court’s inherent jurisdiction, in circumstances where there is no attack on the judgment, has been considered in three comparatively recent cases: Butterfield v R E Morris Limited HC CHCH B 397/01, 29 August 2001, Master Venning; Re Holloway ex parte Darby; and Re Sadler, ex parte Insite Design & Development Limited HC AKL CIV 2006-404-4528, 27 April 2007, Associate Judge Sargisson.
[33] In Butterfield the debtor argued that he had a cross-claim which he could not set up in the proceeding in which the judgment was obtained. Master Venning (as he then was) rejected that proposition, and then considered whether to set aside using the inherent jurisdiction. He took the view that the judgment was properly obtained. He stated that the other claims the debtor had against the creditor were relevant to the exercise of s 26 of the Insolvency Act 1967, but did not accept that the reasons put before him were so compelling that the Court ought to stay the proceeding or set aside the bankruptcy notice as an abuse of process.
[34] In Holloway the creditor had a judgment for $15,110. An application to set aside was made on the basis that the debtor had issued a new proceeding against the creditor claiming $105,000. Associate Judge Faire exercised the Court’s inherent jurisdiction to stay any further steps in bankruptcy in reliance on a bankruptcy notice issued in respect of the $15,110 judgment. He accepted that there was inherent jurisdiction to stay where there is an abuse of process. He took the view that adjudication would effectively bar the debtor from pursuing his claim. Factors which influenced him to grant a stay were that the debtor had issued his proceeding
for a sum many times in excess of the judgment, that the Court giving the judgment had expressly noted that the judgment would not bar the cause of action pleaded in the debtor’s new proceeding (framed on a different basis, albeit in relation to the same set of facts), and that the creditor had not contested the factual circumstances put forward by the debtor in support of the new proceeding (as that would inevitably give rise to issues over the merits). Perhaps most significantly, however, Associate Judge Faire took the view that any prejudice to the creditor could be minimised by imposing conditions for the judgment sum to be paid into the Court pending determination of the later proceeding, and that the proceeding be prosecuted diligently.
[35] Re Sadler was another case where the debtor had a proceeding on foot against the creditor. Associate Judge Sargisson declined to exercise the Court’s inherent jurisdiction to stay the bankruptcy notice pending the outcome of the other proceeding. She noted that there was no basis for concluding that the creditor’s judgment was obtained improperly, and took the view that an offer to pay the judgment sum into a solicitor’s trust account was merely a device to overcome the debtor’s difficulty in raising specific grounds under s 19(1)(d).
[36] These authorities suggest to me that a debtor who cannot rely on the specific grounds under s 19(1)(d), but seeks to have the Court exercise its inherent jurisdiction to set aside a bankruptcy notice or stay bankruptcy proceeding on the grounds of potential injustice (but not impugning the underlying judgment debt) must show very special circumstances.
[37] The circumstances of the present case do not persuade me that it would be an abuse of process to allow the bankruptcy notice to stand, and a bankruptcy proceeding based on it to be brought:
a) There is no challenge to the judgment debt itself.
b)The claim that there has been a failure to account properly to Mr Krukziener in respect of the sale proceeds from Customhouse is lacking any reasonable factual foundation (it is asserted but not
supported other than by calculations) and is inconsistent with Mr Krukziener’s acceptance of the November 2002 loan amount. It is also lacking in credibility in that it was not raised in the summary judgment proceeding.
c) Even if the claim in respect of the joint venture over the Albert Street properties is arguable (and I will accept that for the purposes of this application that it is, without making a finding on the issue), Hanover Finance was not a party to the joint venture or the decisions made to terminate the project. I see no reason to lift the corporate veil to impute to it the alleged wrongdoing of other Hanover companies.
d)The claim for breach of the joint venture can still be pursued by Wolfe (a party to the joint venture), and the Official Assignee has the option to pursue any separate claim that Mr Krukziener may have, if persuaded as to its merit.
e) The circumstances are quite different from those in Siteworks.
f) There was no reservation of this claim by Associate Judge Sargisson, nor was there any suggestion that the amount of the judgment debt could be paid into Court or otherwise secured. On those grounds I distinguish the decision in Holloway.
g) The claim that Hanover is in breach of duty as mortgagee in respect of the Ngapipi Road property appears to be barely arguable, at best, given the decision of Associate Judge Doogue in Wolfe Developments Limited v Hanover Finance Limited, HC AKL, CIV 2006-404-5010,
17 October 2006.
h)Mr Krukziener agreed to terms of the loan and the guarantee that he was not entitled to raise any set-off against money repayable under the loan.
i)There is greater injustice in denying Hanover Finance its right to pursue remedies than to allow those clear rights to be placed on hold indefinitely whilst Mr Krukziener pursues a claim with considerable uncertainties as to its outcome (particularly in relation to the effect on the undisputed judgment debt).
Decision
[38] Mr Krukziener has not satisfied me that he has a counter-claim, set-off or cross-demand equal to or in excess of the judgment sum, which he was unable to raise in the summary judgment application. He has not raised any other reason to impugn the judgment debt, and I do not find there to be any other circumstances which cause either the issue of the bankruptcy notice or continuation of bankruptcy proceedings based on it to be an abuse of process warranting exercise of the Court’s inherent jurisdiction to set aside or stay.
[39] Mr Krukziener’s application to set aside the bankruptcy notice is dismissed.
[40] Hanover Finance, having successfully opposed the application, is entitled to costs. Mr Krukziener is to pay Hanover Finance its costs on a 2B basis together with
disbursements as fixed by the Registrar.
Associate Judge Abbott
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