Mead v Memelink

[2016] NZHC 1430

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-226 [2016] NZHC 1430

UNDER	the Insolvency Act 2006
IN THE MATTER OF	the bankruptcy of Harry Memelink
BETWEEN	BRUCE ALAN MEAD Judgment Creditor
AND	HARRY MEMELINK Judgment Debtor

Hearing:	28 June 2016
Counsel:	J C Gwilliam for the Judgment Creditor H Memelink in Person
Judgment:	28 June 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]      Mr Memelink has filed an application to set aside a bankruptcy notice which has been served on him.  His substantial ground for the application is that he has an appeal to this Court pending against the District Court judgment which was the subject of the bankruptcy notice.  Mr Memelink also applies for a stay of execution or enforcement of the District Court judgment.  He refers in that regard to r 17.29 of the High Court Rules, and s 42 of the Insolvency Act 2006 (the Act).

[2]      I   am   told   that   Mr Memelink’s   appeal   is   set   down   for   hearing   on

1 September 2016.

[3]      Mr Memelink’s  applications  are  opposed  by  Mr  Mead.     Mr Mead  is concerned that any adjournment of the application to set aside the bankruptcy notice

may impede his ability to file an adjudication  application within the prescribed

BRUCE ALAN MEAD v HARRY MEMELINK [2016] NZHC 1430 [28 June 2016]

period: Mr Gwilliam says that an application for adjudication would need to be made by 11 August 2016.

[4]      I am satisfied that no basis for setting aside the bankruptcy notice has been established.  Under s 17 of the Act a debtor wishing to have a bankruptcy notice set aside must satisfy the Court that he or she has a cross-claim against the creditor which is equal to, or greater than, the judgment debt.  Further, s 17 requires that the cross-claim must be one that the defendant could not have used as a defence in the action or proceeding in which the judgment was obtained.

[5]      An appeal does not in my view come within the concept of a cross-claim – Mr Memelink  refers  only  to   alleged   perjury  in  the  evidence  given  in  the District Court, but it appears that that allegation could have been dealt with in the District Court.

[6]      As  for  the  application  to  stay enforcement  of  the  judgment  pending  the hearing of Mr Memelink’s appeal, I do not consider that to be a matter to be dealt with by this Court sitting in its bankruptcy jurisdiction.  Any stay order pending the hearing of an appeal from a District Court judgment can be dealt with under r 20.10 of the High Court Rules, and I think that if Mr Memelink considers that a stay of enforcement is necessary that is the appropriate rule he should invoke.  I do not at this  stage  know  what   steps  have  been  taken  in  the  case  management  of Mr Memelink’s appeal, but it seems to me that the appropriate course is to adjourn the stay application and grant Mr Memelink leave to apply by memorandum, to be filed within three days of the date of this judgment, to have the stay application brought on for hearing.   There may be other matters of an interlocutory nature affecting the appeal, so any memorandum Mr Memelink may file should be referred to the judicial officer who is handling the case management of the appeal.

[7]      I will reserve the question of costs on today’s hearing.  Leave is reserved to the parties to apply by memorandum for any costs orders, within 14 days after Mr Memelink’s stay application has been resolved, or the appeal has been heard, whichever is the earlier.

Associate Judge Smith