Lister v Lister - [2018] NZHC 2128

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2018-425-000010

[2018] NZHC 2128

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of DEBRA ANNE GRETA LISTER

BETWEEN

LANCE IAN LISTER, LINDA LOUISE LISTER and ROBYN ETHEL FRONTIN MATHEWS

Judgment Creditors

AND

DEBRA ANNE GRETA LISTER

Judgment Debtor

Hearing: 1 August 2018

Appearances:

D A G Lister (Judgment Debtor/Applicant) in person S N McKenzie for Judgment Creditors (Respondents)

Judgment:

17 August 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

on application to set aside bankruptcy notice

Introduction

[1] The judgment creditors have issued a bankruptcy notice against Debra Lister pursuant to a judgment debt. Ms Lister applies to set aside the bankruptcy notice.

LISTER v LISTER [2018] NZHC 2128 [17 August 2018]

Short history

[2] In a previous judgment, the Court set out a short history of how the judgment debt came about.1 It is this:

A disputed property

[2] The [Wilson Family Home] Trust is the registered proprietor of an apartment in Royal Oak, Auckland. It came to be so through this route:

(a)Ms Lister’s aunt, the then-registered proprietor, died in 1995 leaving a life interest in the apartment to Ms Lister’s father and the apartment itself (in remainder) to the Trust;

(b)Ms Lister’s father died in 2011. The creditors are the current executors and trustees of his estate;

(c)Litigation ensued as Ms Lister commenced various proceedings, including a challenge to the aunt’s will and an application for further provision from the father’s estate. All Ms Lister’s claims failed,² the Trust being found to be the legal and beneficial owner of the apartment.³

(d)On 15 May 2018 title to the apartment was transferred to the Waitemata Health Board as trustee of the Trust.

The costs judgment

[3] The High Court on 15 March 2017 ordered Ms Lister to pay costs and disbursements of $45,928.75 to the creditors as trustees of the father’s estate.⁴ The creditors’ bankruptcy notice refers to that judgment debt.

[4] Ms Lister was also ordered to pay costs and disbursements to the Trust. The Trust has not sought to recover that debt from Ms Lister.

Setting aside a bankruptcy notice – s 17 Insolvency Act 2006

[3] Section 17(1) Insolvency Act 2006 provides that a judgment debtor who is served with a bankruptcy notice commits an act of bankruptcy in stated circumstances. An act of bankruptcy will not be committed if, pursuant to s 17(1)(d)(ii), the debtor satisfies the Court that he or she has a cross claim against the creditor. Section 17(7) identifies what is required of a cross claim. It states:

1      Lister v Lister [2018] NZHC 1743 at [2] – [4].
2      Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 1956; Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553; Lister v Mathews [2016] NZHC 1540.
3      Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553 at [20]; Lister v Mathews [2016] NZHC 1540 at [6].

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 Lister v Lister

Details

AGLC: Lister v Lister [2018] NZHC 2128
Case: [2018] NZHC 2128
Decision Date: 17 August 2018

CaseChat Overview and Summary

Lister v Lister is a case before the High Court of New Zealand, Invercargill Registry, where Debra Lister applied to set aside a bankruptcy notice issued against her by judgment creditors, Lance Ian Lister, Linda Louise Lister, and Robyn Ethel Frontin Mathews. The creditors issued the notice pursuant to a judgment debt arising from litigation involving the ownership of a Royal Oak apartment in Auckland. Debra Lister argued that the bankruptcy notice was an abuse of process due to various grievances, including alleged maladministration of family trusts and unresolved issues related to the Royal Oak apartment and her mother's Māori land. The creditors opposed the application, asserting that Debra Lister could settle the debt by accepting their proposal for an interim distribution from the estate. The court considered the arguments and found that Debra Lister had not established a ground for setting aside the bankruptcy notice. The creditors' use of the bankruptcy notice procedure did not amount to oppression or abuse of process. Debra Lister's grievances did not relate to a cross claim against the creditors, and her beneficial entitlement in the father's estate could not be raised as a setting aside ground under section 17(1) of the Insolvency Act 2006. The court dismissed the application, and costs were to follow the event on a 2B basis.

Final orders: 1. The application to set aside the bankruptcy notice is dismissed. 2. Costs to follow the event on a 2B basis. The parties are to seek to resolve the quantum of costs. If there is no agreement on quantum, the Court will determine the matter on the papers.

Orders