McKay v Bartlett - [2025] NZHC 3275

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1138

[2025] NZHC 3275

BETWEEN
ANDREW MCKAY and REES LOGAN as

liquidators of Aisleworx Limited (in liquidation)
First Judgment Creditors

AISLEWORX LIMITED (in liquidation) Second Judgment Creditor

PGL ADMIN LIMITED

Third Judgment Creditor

AND

DOUGLAS JAMES BARTLETT

Judgment Debtor

Hearing: On the papers

Counsel:

M Tingey and TL Utama for the Judgment Creditors D Bartlett, Judgment Debtor in Person

Judgment:

3 November 2025

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 3 November 2025 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Fee Langstone, Auckland

MCKAY v BARTLETT [2025] NZHC 3275 [30 October 2025]

Introduction and background

[1] Andrew McKay and Rees Logan, as liquidators of Aisleworx Limited (in liquidation), together with the company in liquidation, and a third judgment creditor, PGL Admin Limited, served a bankruptcy notice on the judgment debtor, Douglas James Bartlett, on 23 May 2025. The bankruptcy notice follows judgment being entered against Mr Bartlett in High Court proceedings for the sum of $361,188.00 plus interest from 20 September 2015. By the date of the bankruptcy notice interest amounted to $140,043.70.

[2] This judgment determines the question of whether a document headed “Notice of Opposition to Bankruptcy Notice” filed on 6 June 2025 by Mr Bartlett ought to be treated as a valid application to set aside the bankruptcy notice served.

[3] Section 17 of the Insolvency Act 2006 provides that a debtor commits an act of bankruptcy where they fail to comply with the requirements of a bankruptcy notice served on them within 10 working days of service.

[4] Any application to set aside a bankruptcy notice must therefore be filed and served within 10 working days of service. The Court has no discretionary power to extend the time for filing such an application because once the ten working day period has expired, an act of bankruptcy has occurred. The act of bankruptcy cannot then be reversed.1

[5] I issued a minute on 17 July 2025 recording that it appeared that the “Notice of Opposition” filed by Mr Bartlett may have been filed on the eleventh working day. I recorded that if the notice of opposition had been filed outside the ten working day period, Mr Bartlett's “opposition” could not proceed as an application to set aside the bankruptcy notice and the judgment creditors could file adjudication proceedings. I directed Mr Bartlett to file an affidavit if he considered he had filed and served the opposition and affidavit within ten working days of service of the bankruptcy notice. The judgment creditors were then to have an opportunity to respond.

Jessica Gorman McGechan on Procedure (online ed, Thomson Reuters) at [HR 24.10.01], citing

Re Scott, ex parte ANZ Banking Group (NZ) Ltd HC Rotorua B 113/89, 15 September 1989.

[6] Mr Bartlett filed an affidavit as directed dated 24 July 2025 confirming that he was served with…

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.

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Details

Case: [2025] NZHC 3275
Decision Date: 3 November 2025

CaseChat Overview and Summary

Andrew McKay and Rees Logan, as liquidators of Aisleworx Limited, along with the company in liquidation and a third judgment creditor, PGL Admin Limited, served a bankruptcy notice on Douglas James Bartlett on 23 May 2025. The bankruptcy notice followed a judgment against Mr Bartlett for the sum of $361,188.00 plus interest, totalling $140,043.70 by the date of the notice. Mr Bartlett filed a document titled "Notice of Opposition to Bankruptcy Notice" on 6 June 2025, which the judgment creditors argue does not constitute a valid application to set aside the bankruptcy notice. The primary legal issue the Court had to decide was whether the "Notice of Opposition to Bankruptcy Notice" could be treated as a valid application to set aside the bankruptcy notice. The Court considered whether the document was a valid application to set aside, given that it was misdescribed and the prescribed fee for such an application was not paid.

The Court noted that while section 418 of the Insolvency Act allows the Court to correct defects in proceedings if not prejudicial, the "Notice of Opposition" was fundamentally flawed as it did not satisfy the criteria for an application to set aside a bankruptcy notice. The Court highlighted that a correct description and the appropriate fee were necessary to file the document correctly. As Mr Bartlett did not pay the requisite fee and the document was misdescribed, it did not constitute a valid application to set aside the bankruptcy notice. The Court further determined that it was not in the interests of the judgment creditors to allow the defects to be corrected because Mr Bartlett would still have the opportunity to raise his points in opposition to the bankruptcy proceedings.

The Court ordered that the omission of the notes required by Form B2 in the bankruptcy notice did not invalidate the notice and that the "Notice of Opposition to Bankruptcy Notice" would not proceed as an application to set aside the bankruptcy notice. The Court also ordered Mr Bartlett to be refunded the $143 he paid in partial payment of the filing fee. Consequently, the act of bankruptcy occurred on 9 June 2025, and the judgment creditors' bankruptcy proceedings could proceed as usual.

Orders