IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-007159 [2012] NZHC 1260
UNDER the Property Law Act 2007 and the
Companies Act 1993
IN THE MATTER OF the liquidation of Kiwi House Limited (in liquidation)
BETWEEN VIVIEN JUDITH MADSEN-RIES AND DAVID STUART VANCE
Plaintiffs
ANDJOLYON BRENDAN GEORDIE THOMPSON
First Defendant
ANDPHILIP IAN D'ATH Second Defendant
Hearing: on the papers
Counsel: NH Malarao and WN Fotherby for Plaintiffs
LFA Yaqub for First Defendant
Judgment: 6 June 2012
JUDGMENT (No 3) OF ASHER J
This judgment was delivered by me on Wednesday, 6 June 2012 at 4.30-pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, DX CP24063, Auckland 1140. Email: nick.malarao@meredithconnell.co.nzLaw & Associates, PO Box 76124, Manukau City. Email: lyndal@lawassociates.co.nz
Copy to:
JBG Thompson, 194 Lake Road, Northcote, Auckland 0627.
MADSEN-RIES V THOMPSON HC AK CIV-2010-404-007159 [6 June 2012]
Introduction
[1] The plaintiffs in this case, Vivien Madsen-Ries and David Vance, are liquidators of a company Kiwi House Ltd. They seek judgment against Jolyon Thompson, the first defendant, by way of formal proof.
[2] The case now has something of a history, and I have already issued three judgments or rulings. In the first I declined to enter judgment by way of formal proof, in the second I recalled that judgment, and in the third I declined the first defendant leave to file a further affidavit.
[3] In this decision I draw on parts of my earlier decisions, in particular my recalled judgment of 22 February 2012.
Background
[4] The proceedings concern a residential property at 194 Lake Road, Northcote, Auckland (“the property”). It is presently registered in the name of the first defendant Jolyon Brendan Geordie Thompson, and the second defendant Philip Ian D’Ath.
[5] The property was transferred into the name of the defendants on 19 June
2008 by Kiwi House Ltd (in liquidation) (“Kiwi House”).
[6] The plaintiffs Vivien Madsen-Ries and David Vance are the liquidators of Kiwi House. They have issued these proceedings claiming that the transfer into the names of Messrs Thompson and D’Ath ought to be set aside under Part 6, Subpart 6, of the Property Law Act 2007. They claim that the company was insolvent at the time of the making of the disposition and that the disposition was made without reasonable exchange in value.
[7] The first cause of action seeks an order under s 348 of the Property Law Act vesting the property in the company. The other causes of action were not pursued as Mr Thompson is bankrupt.
[8] The plaintiffs’ claim against Mr D’Ath has been settled and Mr D’Ath has signed a transfer of the property back to the plaintiffs. This proceeding therefore only concerns the claim against Mr Thompson.
[9] Mr Thompson, although he has not filed a statement of defence, argues that he was not served and that he has a good defence to the claim.
Approach
[10] Under r 15.12 the Court has a discretion as to whether to…
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