Lane v Questnet Limited HC Auckland CIV-2007-404-6164

[2008] NZHC 2667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-6164

IN THE MATTER OF     the Insolvency Act 1967

BETWEEN  WILFRED ROYCE LANE Judgment Debtor

ANDQUESTNET LIMITED Judgment Creditor

Hearing:         [Determined on the Papers] Judgment: 31 October 2008 at 2:00 pm

JUDGMENT ON ADJOURNMENT APPLICATION  OF ASHER J

This judgment was delivered by me on 31 October 2008 at 2:00 pm pursuant to Rule 540(4) of the High Court Rules

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Registrar/Deputy Registrar

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Date

WR Lane, Suite 907, Silvercord, Tower Two, 30 Canton Rd, Tsim Sha Tsui, Kowloon, Hong Kong

Hucker & Associates, PO Box 3843, Shortland Street, Auckland

LANE V QUESTNET LIMITED HC AK CIV-2007-404-6164  31 October 2008

[1]      Questnet Limited, the judgment creditor, seeks an order adjudicating Wilfred

Royce Lane bankrupt.

[2]      The opposed hearing of Questnet’s petition has been set down for a one-day fixture on Tuesday 4 November 2008.  Mr Lane, the judgment debtor, now seeks an adjournment of that hearing.  He asserts that he is held against his will outside New Zealand for a period of one month from 12 October 2008 as a consequence of a departure   prohibition   order   made   by   the   High   Court   in   Hong   Kong   on

9 October 2008.    Mr Lane  has  on  two  occasions  sought  to  have  the  departure prohibition orders discharged but those applications have been heard and his request denied.  I accept for the purposes of this application that these statements are correct.

[3]      Mr Lane claims that he has complied with the requirements of the bankruptcy notice in full.  He states that he was not informed by the Court of the hearing date until 9 October 2008.   He claims that he is suffering from financial hardship and states  that  he  now  wishes  to  apply  for  legal  aid  so  that  he  can  be  properly represented. He asks for a fixture in March of next year.

[4]      This is Mr Lane’s second application for an adjournment.  The petition was first set down for hearing on 20 August 2008.   On 19 August 2008 at Mr Lane’s request Associate Judge Doogue adjourned the proceedings.   The basis for that adjournment was that Mr Lane was at that time in prison in Hong Kong for contempt of court.  Associate Judge Doogue vacated the fixture but stated that a further fixture would not be allocated.  He concluded his minute by stating at [5]:

It must be understood, though, that the case will not be allowed to drift on indefinitely. The factual matters that justify an adjournment on this occasion are unlikely to be duplicated in the future and it is therefore unlikely that any further adjournments will be granted.

[5]      Mr Lane is no longer in prison.  However, the prohibition order does restrain him from leaving Hong Kong.

[6]      Mr Lane has in fact been in receipt of the bankruptcy notice since it was served on him on 16 October 2007.  He has been specifically informed of the need to

be ready for a hearing since Associate Judge Doogue’s minute of 19 August 2008. Mr Lane does not explain in his application why he made no effort to seek legal aid or instruct counsel since then.  He was during that period on express notice that a new fixture was going to be allocated, and that it was unlikely that any further adjournment would be granted.  If he had acted responsibly in seeking to defend the application he should have briefed a lawyer or sought legal aid in late August.  He did not do so.

[7]      Mr Lane is no longer in prison.  While restrained in Hong Kong there is no reason why he could not have taken steps to seek legal aid or indeed to instruct counsel.   It appears that he has instructed counsel on other matters, including a pending appeal to the Court of Appeal on which he has paid security for costs.

[8]      Mr Lane is in effect seeking an indulgence.  A person seeking an indulgence has  an  obligation  to  disclose  all  obviously  material  information  to  the  Court. Mr Lane  has  failed  to  explain  why  he  has  taken  no  action  until  the  present application, and indeed it appears that as at the present time he has still not applied for legal aid.  Mr Lane has given no details about his financial situation and why, despite having previously instructed lawyers, he is apparently no longer able to do so.  Mr Lane has a history of not appearing at fixtures or taking the necessary steps in Hong Kong proceedings, which I referred to in my judgment of Questnet Limited v Lane AK HC CIV-2007-404-5827 16 May 2008.

[9]      Questnet does not seek to cross-examine Mr Lane at the hearing, nor does the file disclose any affidavits in opposition to the application, save for an affidavit of Mrs Mary Grace Lane.  There is therefore no reason why Mr Lane cannot oppose the petition through legal representation without his personal appearance.

[10]     Bankruptcy proceedings cannot be allowed to continue indefinitely.  Anyone facing a  bankruptcy petition  and  wishing to  oppose  that  petition  in  a  defended hearing should take all available steps to ensure that a proper defence is organised. In the material he has put before the Court Mr Lane has not adequately explained his failure to do this.

[11]     Mr Lane has not made out a case for an adjournment and his application is declined.

[12]     I remind the parties of the need to file written submissions in accordance with the timetable directions.

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Asher J