Monschau v Bamber - [2018] NZHC 2566

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2018-463-49 [2018] NZHC 2566

BETWEEN
SHANE MAURICE MONSCHAU and

HARRY TE NGARU as majority trustees of the TAHORAKURI A NO.1 33A2 AHU WHENUA TRUST

Judgment Creditors

AND

BRUCE ANDERSON BAMBER Judgment Debtor

AND

KATHEEN MATA BAMBER Judgment Debtor

Hearing: 26 September 2018

Appearances:

J Temm and Ms Douch for the Judgment Creditors
F Wood for the Judgment Debtors

Judgment:

26 September 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Mark Copeland Lawyers, Rotorua, for the Judgment Creditors
Tompkins Wake, Rotorua, for the Judgment Debtors

Copy for:
Jonathan Temm, Rotorua, for the Judgment Creditors

MONSCHAU and TE NGARU v BAMBER [2018] NZHC 2566 [26 September 2018]

[1] This is a decision on an application to set aside a bankruptcy notice. The bankruptcy notice was issued in May this year. The creditors are Shane Maurice Monschau and Harry Te Ngaru. They are two of the trustees of an ahu whenua trust, the Tahorakuri A No.1 33A2 Ahu Whenua Trust. It is the trust for land at 442 Te Toke Road, Reporoa. The trust was established in 2011. The other trustee is Aaron Bamber, the son of the debtors named in the notice. For obvious reasons he is not involved in this proceeding.

[2] The amount claimed in the bankruptcy notice is $175,851.25. That is made up of debts claimed in four court judgments and court orders: a decision of the Waiariki Māori Land Court on 10 December 2015; a decision of the Māori Appellate Court on
23 September 2016; a decision of the Māori Appellate Court of 11 October 2016; and a decision of the Waiariki Māori Land Court on 22 February 2017.

[3] The bankruptcy notice is directed at two debtors, Bruce Anderson Bamber and Kathleen Mata Bamber. The main ground advanced for setting aside the bankruptcy notice is that Mr and Mrs Bamber assert a cross claim under s 17 of the Insolvency Act 2006. They say they have a counterclaim, set-off or cross-demand that is equal to or greater than the judgment debt, and which they could not use as a defence in the proceedings in which the judgment was obtained.

[4] There are however other issues that need to be addressed. The bankruptcy notice is addressed to two debtors, not one. The bankruptcy notice is based on four court orders and judgments. Only Mr Bamber has been served with the bankruptcy notice. The Bambers also attack the status of the trustees to enforce the judgments.

[5] The background to the matter goes back many years. The beneficial interests in the land are held by descendants of Mrs Bamber’s father, Stacey Mark Keremete. Mr and Mrs Bamber lived on the land rent-free from 1983. They worked to clear the land and make it productive. Mrs Bamber says that the land did not become productive until about 2000. They later sub-leased the land to a farmer and received…

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 Monschau v Bamber

Details

AGLC: Monschau v Bamber [2018] NZHC 2566
Case: [2018] NZHC 2566
Decision Date: 26 September 2018

CaseChat Overview and Summary

In this case, the creditors Shane Maurice Monschau and Harry Te Ngaru, as trustees of the Tahorakuri A No.1 33A2 Ahu Whenua Trust, applied to set aside a bankruptcy notice against Bruce Anderson Bamber and Kathleen Mata Bamber. The notice was based on judgments and orders made by the Waiariki Māori Land Court and the Māori Appellate Court, totalling $175,851.25. The Bambers argued that they had a cross claim under section 17 of the Insolvency Act 2006, which they could not raise as a defence in the original proceedings. The court had to decide whether the Bambers had a valid counterclaim and whether the bankruptcy notice was correctly served on both debtors.

The court first examined the validity of the service of the bankruptcy notice on Mrs Bamber. It found that the notice was not properly served on her as she was not present at the address when it was served on Mr Bamber. The court held that since Mrs Bamber was not served, she had not been properly notified of the bankruptcy notice and could not be held liable under it. The court also considered Mr Bamber's claim that he had a counterclaim which he could not raise in the original proceedings. The court ruled that Mr Bamber had already had the opportunity to raise his counterclaim in the Māori Land Court hearings and that the judge had already considered and rejected it. Therefore, Mr Bamber could not set aside the bankruptcy notice on the grounds of a counterclaim.

The court then addressed the irregularity of the bankruptcy notice being based on multiple judgments and orders. While the court acknowledged that it is generally preferred for a bankruptcy notice to be based on a single judgment debt, it found that in this case, Mr Bamber had a common response to all the debts, which was his counterclaim. The court ruled that the irregularity did not invalidate the bankruptcy notice as Mr Bamber had already had the opportunity to raise his counterclaim in the original proceedings.

The court upheld the bankruptcy notice against Mr Bamber but adjourned the application to give him further time to comply with the notice. The court also noted that while Mrs Bamber had not been served, the decision did not affect the proceedings against Mr Bamber. The court declined to award costs to either party, considering the spirit of magnanimity shown by both.

Orders