Mayer v Trustees Executors Limited HC Auckland CIV 2010-404-902

[2010] NZHC 1507

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-000902

IN THE MATTER OF     of the Insolvency Act 2006

BETWEEN  MALCOLM DUNCAN MAYER Judgment Debtor

ANDTRUSTEES EXECUTORS LIMITED Judgment Creditor

Hearing:         22 April 2010

23 April 2010

Appearances: G P Denholm for the Judgment Debtor

D Broadmore for the Judgment Creditor

Judgment:      26 April 2010

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

26.04.10 at 3:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:

G Halse, Foy & Halse, Epsom – [email protected]

G P Denholm, Barrister, P O Box 5080, Wellesley Street, Auckland 1141 – Fax: [phone]

D Broadmore, Buddle Findlay, Auckland – [email protected]

MALCOLM DUNCAN MAYER V TRUSTEES EXECUTORS LIMITED HC AK CIV 2010-404-000902  26

April 2010

[1]      The  judgment  debtor  has  applied  to  set  aside  the  judgment  creditor’s bankruptcy notice.  On 14 December 2009 I made orders for the removal of caveats registered  by the  defendants  over  a  property subject  of  the  judgment  creditor’s mortgage.  In that outcome I awarded costs in favour of the judgment creditor in the sum of $5,440.  The judgment debtor did not pay the costs and the judgment creditor served on 17 February 2010 a bankruptcy notice requiring payment of the costs order within ten working days i.e. by 29 March 2010.

[2]      The Court record shows that on 30 March 2010 the judgment debtor filed an amended application to set aside the bankruptcy notice.   It was that application which was listed for call before me in the chambers list on 22 April 2010.   In advance of the call the judgment creditor’s solicitors filed submissions submitting the application had been filed out of time i.e. outside of the ten working days period within which such should have been filed.  To my mind and upon these grounds it seemed the judgment creditor’s opposition to the judgment debtor’s application was well founded.

[3]      When the matter was called on 22 April I queried with Mr Denholm the description of the application as an amended application to set aside.  He advised me then that the original application had been filed the day before, i.e. on 29 March

2010 and within the time specified for filing that application.

[4]      Mr  Broadmore’s  submission  for  the  judgment  creditor  was  that  any application had been filed out of time but also could not have been accepted in the form it was filed because it was expressed to be a notice of opposition to the filing of a bankruptcy notice, and not an application to set aside a bankruptcy notice.

[5]      At that time I adjourned the matter until 3:00pm 23 April 2010 to enable Mr Denholm to file evidence in support of the claim that, an original document challenging the bankruptcy notice was indeed filed on 29 March 2010.

[6]      When at that time the matter was called before me the Court had received a second affidavit from Mr Mayer.  This dealt with the events on 29 March 2010.  Mr Mayer deposed that he and Mr Denholm had attended the Court Registry at 4:50pm

that day and had tendered an original document and Mr Mayer’s affidavit in support. A filing fee of $200 was also paid.  This account is supported by a memorandum from a member of the Court staff who notes that at the time of receipt of the document the heading of it was changed from an application opposing bankruptcy, to an application to set aside the bankruptcy notice.  That change was initialled by, it appears, Mr Mayer.  The Court Officer records that the documents tendered for filing were held pending a corrected document being filed the following day.  Apparently this was done because the document was not filed in proper form i.e. to record the date when the document would be listed for a first call.

[7]      I am satisfied on that account of matters that a document prepared with the benefit of legal advice, was filed within time with the intention of challenging the judgment creditor’s bankruptcy notice.   Further, although it did not, as it should have, advise where and when the judgment creditor was required to appear to answer the application, the document could be considered adequate notwithstanding it did not strictly comply.   It is clear that in the amended application filed on 30 March

2010 the judgment creditor was given notice of the first call on 22 April, that notice having been served by letter from Mr Mayer’s solicitors dated 30 March 2010.

[8]      In his original affidavit to set aside/oppose the bankruptcy notice Mr Mayer deposes that the mortgagees of his properties sold chattels over which the mortgagee retained no security interest.  These Mr Mayer lists and he identifies a total chattel value of $36,720.  At face value it appears there is an issue the merits of which need examination.

[9]      The  strict  requirements  of  Rule  7.19  notwithstanding  I am  satisfied  that within time an appropriate document was filed and after the date of hearing was appropriately advised by Mr Mayer’s solicitors the following day by mail.

Result

[10]     Mr Mayer’s application to set aside the bankruptcy notice will be listed for call in the chambers list at 2:15pm on 20 May 2010.

[11]     Any opposition by the judgment creditor is to be filed and served by 14 May

2010.

Associate Judge Christiansen