Lister v Lister - [2018] NZHC 1743

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 Creditors

AND

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].
3      Lister v Lister [2017] NZHC 445.

[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]…

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 1743
Case: [2018] NZHC 1743
Decision Date: 13 July 2018

CaseChat Overview and Summary

In Lister v Lister, the debtor, Debra Lister, applied to join the Wilson Home Trust as a creditor in a bankruptcy proceeding. The Trust opposed the application. The Trust was the legal and beneficial owner of an apartment in Royal Oak, Auckland, and had been awarded costs against Ms Lister in previous proceedings. Ms Lister sought to join the Trust to the bankruptcy proceeding to enforce a debt against her.

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