Lupton v Commissioner of Inland Revenue

[2013] NZHC 1451

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2012-454-574 [2013] NZHC 1451

IN THE MATTER

of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of GRAEME JOHN LUPTON

Judgment Debtor

EX PARTE

COMMISSIONER OF INLAND REVENUE

Judgment Creditor

Hearing:	14 June 2013
Appearances:	C.K. Wood and Mr Acton - Solicitor for Judgment Creditor No appearance for the Defendant
Judgment:	14 June 2013

ORAL JUDGMENT OF JUSTICE D.I. GENDALL

Solicitors:             Meredith Connell, Solicitors, Auckland

Commissioner of Inland Revenue v GJ Lupton [2013] NZHC 1451 [14 June 2013]

[1] On 24 March 2011 this Court entered judgment in favour of the judgment creditor for a large amount of outstanding taxation, interest and penalties exceeding

$1.2 million.

[2] Some considerable time later, the judgment debtor endeavoured to lodge an appeal against that judgment with the Court of Appeal and sought leave for the filing of this appeal. That application for leave was dismissed by the Court of Appeal on 26 March 2013.

[3] In the meantime, on 29 August 2012, a Bankruptcy Notice was issued by the judgment creditor against the judgment debtor for the sum of $1,238,333.10 being the balance remaining outstanding under the original 24 March 2011 judgment.

[4]     On 18 September 2012 the judgment debtor filed in this Court an application to set-aside that Bankruptcy Notice. That application was opposed by the judgment creditor in a Notice of Opposition filed 15 October 2012.

[5]    That opposed application to set-aside the Bankruptcy Notice was originally for hearing in this Court on 15 March 2013 but was adjourned then and came on for hearing today, 14 June 2013.

[6] Mr Wood and Mr Acton appeared today on behalf of the judgment creditor. There was no appearance for or on behalf of the judgment debtor.

[7] Instead, the judgment debtor Graeme John Lupton (Mr Lupton)  had forwarded an email to this Court at 4.25 pm yesterday, 13 June 2013 which stated amongst other things:

Using the provisions of the  no-asset procedure I successfully applied today to declare myself bankrupt. I apologise for the waste of the Court’s time tomorrow.

[8] At 10.00 am today, 14 June 2013 when this matter was called there was no appearance for the judgment debtor Mr Lupton. The Registrar of the Court at my direction telephoned Mr Lupton then to see whether he intended to appear today.

The Registrar was informed by Mr Lupton that he did not intend to appear and that this matter could simply take its course.

[9] That said, effectively there is before me no submissions in support of the application to set-aside the Bankruptcy Notice. That application accordingly must fall away. An order is now made dismissing the application.

[10] This is on the basis that effectively the application is withdrawn by the judgment debtor, given his confirmation that he really does not in any way oppose the judgment creditor’s endeavours to have him adjudicated bankrupt. Certainly by indicating that he has himself applied to the Official Assignee to have himself declared bankrupt, Mr Lupton confirms that he is insolvent.

[11] That effectively disposes of the application to  set-aside  the  Bankruptcy Notice. As I have noted above, that application is dismissed.

[12]    In so far as it may be relevant, an order is now made that the judgment debtor is to have until 5.00 pm on 18 June 2013 to comply with the provisions of the Bankruptcy Notice, failing which the judgment creditor will then be in a position to file an application for his adjudication, if that is still appropriate.

[13]  The judgment creditor has been put to some trouble and expense in opposing the present application. I see no reason why costs should not follow the event in the normal way.

[14]     Costs are awarded to the judgment creditor with respect to this application on a category 2B basis together with disbursements. The total amount for these costs and disbursements is to be $9,149.02) and an order to this effect is given.

[15]  Mr Wood, counsel for the judgment creditor, raised one further matter with me at the conclusion of the hearing of this matter today. This related to what he described as inappropriate allegations and statements made by the judgment debtor with respect to officers and employees of the judgment creditor in various papers and material which were filed by the judgment debtor for this proceeding.

[16]  Having had an opportunity to consider most of the material which is before the Court in support of the present application, I am satisfied that there are matters which are inflammatory and unsubstantiated, and that an order sealing this file should be made.

[17]    An order is now made therefore sealing this file CIV-2012-454-574.  The file is not to be searched or made available to any party or a person without the leave of a Judge of this Court being first obtained.

‘Justice D.I. Gendall’