IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV- 2018-425-000010
[2018] NZHC 1743
UNDER the Insolvency Act 2006 AND
IN THE MATTER OF
the bankruptcy of DEBRA ANNE GRETA LISTER
BETWEEN
LANCE IAN LISTER, LINDA LOUISE LISTER and ROBYN ETHEL FRONTIN MATTHEWS
Judgment CreditorsAND
DEBRA ANNE GRETA LISTER
Judgment Debtor
Hearing: (By telephone conference) 13 July 2018 Appearances:
D A G Lister (judgment debtor) in person
C P Hallowes for Wilson Home Trust (Respondent on an application for joinder)
(Judgment creditors excused)Judgment:
13 July 2018
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
(on joinder application)
Introduction
[1] The judgment creditors have issued a bankruptcy notice against Debra Lister pursuant to a judgment debt. Ms Lister applies for an order joining the Wilson Home Trust (previously known as the Wilson Home for Crippled Children) (a charitable
Lister v Lister [2018] NZHC 1743 [13 July 2018]
trust) (“the Trust”) to “this bankruptcy proceeding”. The Trust opposes the application.
Short history
A disputed property
[2] The 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 failed1, the Trust being found to be the legal and beneficial owner of the apartment.2
(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.3 The creditors’ bankruptcy notice refers to that judgment debt.
1 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.
2 Lister v Pegg Ayton Gordon Trustee Ltd [2014] NZHC 2553 at [20]; Lister v Mathews [2016] NZHC 1540 at [6].
[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.
Why “join” another creditor?
Ms Lister’s explanation of the proposed joinder
[5] Before considering whether a separate creditor may be “joined” to a bankruptcy notice, I identify for what reason Ms Lister seeks to join the Trust. Ms Lister records that the Trust has been joined as a party in the earlier (ordinary) proceedings. Ms Lister refers to the Court’s power of joinder (with or without application) under r 4.56(2) High Court Rules.
[6]…
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- Lister v Lister [2018] NZHC 1743
- Case
- [2018] NZHC 1743
- Decision Date
CaseChat Overview and Summary
The court held that the Trust could not be joined as a creditor in the bankruptcy proceeding. The court found that there was no legal basis for joinder as the statutory regime under the Insolvency Act 2006 and the High Court Rules only allows for a single debtor and a single creditor in a bankruptcy notice or adjudication proceeding. The court further held that the decision of whether to enforce a debt is a matter for the creditor, and the court has no role in reviewing that decision-making.
The court dismissed the debtor's application for joinder and ordered that the debtor pay the Trust's costs on a 2B basis.
The court held that the debtor's application for joinder was without merit and there was no legal basis for joinder. The court found that the decision of whether to enforce a debt is a matter for the creditor, and the court has no role in reviewing that decision-making. The court dismissed the debtor's application for joinder and ordered that the debtor pay the Trust's costs on a 2B basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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