Mogey v Jull - [2014] NZHC 1340

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2014-463-000008 [2014] NZHC 1340

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of ALBERT EDWARD GEORGE JULL

BETWEEN

LYNETTE ALISON MOGEY and JOHN VICTOR MOGEY Judgment Creditors

AND

ALBERT EDWARD GEORGE JULL Judgment Debtor

CIV-2014-463-000009

UNDER the Insolvency Act 2006

IN THE MATTER of the bankruptcy of ALBERT EDWARD GEORGE JULL

BETWEEN PENELOPE JANE CHOTE Judgment Creditor

ANDALBERT EDWARD GEORGE JULL Judgment Debtor

CIV-2014-463-000010

UNDER the Insolvency Act 2006

IN THE MATTER of the bankruptcy of ALBERT EDWARD GEORGE JULL

BETWEEN NARELLE LINDA LITTLE Judgment Creditor

ANDALBERT EDWARD GEORGE JULL Judgment Debtor

L A MOGEY and J V MOGEY v A E G JULL [2014] NZHC 1340 [16 June 2014]

CIV-2014-463-000010

UNDER the Insolvency Act 2006

IN THE MATTER of the bankruptcy of ALBERT EDWARD GEORGE JULL

BETWEEN ROBERT STANLEY LITTLE Judgment Creditor

ANDALBERT EDWARD GEORGE JULL Judgment Debtor

Hearing: 10 June 2014

Appearances:

J W S Grant for Plaintiffs
M Macfarlane for Defendant

Judgment:

16 June 2014

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

This judgment was delivered by me at 4.30 pm on 16 June 2014 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

[1] On 26 November 2013 the Court entered judgment against the judgment debtor (Mr Jull) on behalf of each of the judgment creditors on a claim arising from Mr Jull’s directorship of Waipawa Holdings Limited, of which Mr Jull was a director from 1991 until he resigned from that position in December 2004. Each of the judgment creditors was a depositor of funds with Waipawa Holdings Limited, which operated as a finance company, and each lost substantial sums of money. The amounts for which judgment was entered represented only part of the sums lost by each judgment creditor, as limitation issues prevented claims for greater sums.

[2] The judgment creditors issued bankruptcy notices against Mr Jull for the amounts of their respective judgments. Mr Jull did not comply with those notices. The judgment creditors therefore commenced this proceeding seeking orders that Mr Jull be adjudicated bankrupt.

[3] Mr Jull opposes each application. He accepts that he owes the sums claimed but he opposes the making of bankruptcy orders on the sole ground that it is not just and equitable that such orders should be made.

[4] Section 37 of the Insolvency Act 2006 provides:

37 Court may refuse adjudication

The Court may, at its discretion, refuse to adjudicate the debtor bankrupt if—

(a) the applicant creditor has not established the requirements set out in section 13; or

(b) the debtor is able to pay his or her debts; or

(c) it is just and equitable that the Court does not make an order of adjudication; or

(d) for any other reason an order of adjudication should not be made.

The evidence

[5] Mr Jull says that in December 2011 he advised the judgment creditors that his personal assets comprised a vehicle, a life policy, and about $25,000 in his current account.…

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 Mogey v Jull

Details

AGLC: Mogey v Jull [2014] NZHC 1340
Case: [2014] NZHC 1340
Decision Date: 16 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mogey v Jull (2014) involved multiple creditors, including Lynette and John Mogey, seeking to have Albert Jull adjudicated bankrupt. The creditors, who had suffered losses from Jull's role as a director of Waipawa Holdings Limited, issued bankruptcy notices which Jull did not comply with. Jull opposed the adjudication on the ground that it was not just and equitable. The court had to determine whether it was appropriate to exercise its discretion under s 37 of the Insolvency Act 2006 to refuse the adjudication. The court considered several factors, including the circumstances of the indebtedness, the conduct of the creditors, Jull's financial position, and the public interest. The court found that Jull was responsible for the losses due to his failure as a director and that his financial position did not support his application. The court concluded that it was appropriate to exercise its discretion and adjudicate Jull bankrupt, with the order taking effect three days after the release of the judgment to allow for potential appeals and settlement discussions.

Orders