Mathiesen v Mathiesen - [2013] NZHC 1925

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2011-476-000295 [2013] NZHC 1925

IN THE MATTER of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of GABRIELLE PAULETTE MATHIESEN

BETWEEN

GABRIELLE PAULETTE MATHIESEN Judgment Debtor

AND

JAN HENRIK MATHIESEN Judgment Creditor

Hearing: 16 July 2013 (at Timaru); 19 July 2013 (by telephone)

Appearances:

Judgment Debtor in Person with Mr Payne as McKenzie Friend, Applicant

N M Willcocks for Judgment Creditor, Respondent

Judgment:

1 August 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

on application for suspension of bankruptcy adjudication

Introduction

[1] Ms Mathiesen was adjudicated bankrupt on 11 June 2013.

[2] She initially desired to pursue what she filed and described as “an injunction for stay to stop the sealing and publication of bankruptcy adjudication”. She wished to pursue an appeal against the underlying judgment of the Family Court (by which Ms Mathiesen was ordered to pay to Mr Mathiesen $156,152.97 by way of part of a balance of relationship property entitlement). Ms Mathiesen had filed an application
for leave to appeal to the Supreme Court in relation to the Family Court judgment.

MATHIESEN v MATHIESEN [2013] NZHC 1925 [1 August 2013]

[3] Ms Mathiesen is self represented. The Court explained on 24 June 2013 and again on 16 July 2013 that the jurisdiction to suspend an order for adjudication lies in s 416 Insolvency Act 2006. Ms Mathiesen had not filed any appeal in relation to the bankruptcy adjudication itself.

Application for suspension of adjudication under s 416 Insolvency Act 2006

[4] On 18 July 2013 Ms Mathiesen filed an application for suspension of her adjudication.

[5] On 17 July 2013 (the previous day) she had forwarded to the Court of Appeal a form of notice of appeal against the adjudication order.

The suspension jurisdiction – s 416 Insolvency Act 2006

The section

[6] Section 416(1) Insolvency Act 2006 establishes the jurisdiction of this Court

(and of the Court of Appeal) to suspend an adjudication. It provides:

416 Suspension of adjudication pending appeal
(1) If an appeal has been filed against an order of adjudication, the bankrupt or any other interested person may apply to the court or the Court of Appeal for an order suspending the adjudication until the appeal is decided.

[7] Section 416(2) provides the Court may attach conditions to the suspension. Section 416(3) provides for orders to be made by this Court or by the Court of Appeal once an appeal is decided (whether or not adjudication has been suspended in the interim). The Court’s power under s 416(3) will extend (where an appeal succeeds without interim suspension of adjudication) to the making of an order akin an order of annulment under s 309(1)(a) of the Act.

The threshold requirement - the filing of an appeal

[8] Section 416(1) of the Act thus provides for orders of suspension if an appeal has been filed against an order of adjudication. In order to obtain an order of

suspension, the bankrupt must come within the provisions of…

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 Mathiesen v Mathiesen

Details

AGLC: Mathiesen v Mathiesen [2013] NZHC 1925
Case: [2013] NZHC 1925
Decision Date: 1 August 2013

CaseChat Overview and Summary

In the case of Mathiesen v Mathiesen, the High Court of New Zealand was tasked with deciding whether to suspend the bankruptcy adjudication of the defendant, Gabrielle Paulette Mathiesen, following her failure to pay a judgment debt of $156,152.97 to the plaintiff, Jan Henrik Mathiesen. The primary legal issue before the court was whether the defendant had met the threshold requirement for suspension of adjudication under section 416 of the Insolvency Act 2006, which states that an adjudication may be suspended if an appeal has been filed against the order of adjudication. The court found that the defendant had not filed a valid appeal against the adjudication order within the 20 working day period as specified in section 414(2) of the Insolvency Act 2006, and therefore did not meet the threshold requirement for suspension of adjudication. The court dismissed the defendant's earlier application for an injunction/stay and refused her application for suspension of adjudication for the time being, adjourning the matter for mention in the List at Timaru at 11.00 am, 10 September 2013. The court also reserved the costs of both applications.

The court held that the defendant's application for suspension of adjudication did not meet the threshold requirement for a suspension order as there was no appeal on which to base a suspension order. The court noted that the defendant had filed an application for an extension of time to appeal, but it was not yet clear whether the Court of Appeal would grant an extension of time. The court also considered the impact of the defendant's failure to pay the judgment debt to the plaintiff and the effect of the Family Court judgment on the defendant's estate. The court found that it was appropriate to enable the Official Assignee to begin the process of protecting the interests of the plaintiff and other creditors. The court also noted that the defendant's claims of fraud and disadvantage due to dyslexia and health issues would need to be properly raised and evidenced if the court had to consider the merits of a suspension order at a later date.

Orders