New Zealand Bloodstock Finance & Leasing Limited v Jones
[2023] NZHC 3542
•8 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1770
[2023] NZHC 3542
BETWEEN NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED
Judgment Creditor
AND
GREGORY JOHN JONES
Judgment Debtor
Hearing: 3 November 2023 Appearances:
A Osama/F A King for the Judgment Creditor Judgment Debtor is self-represented
Judgment:
8 December 2023
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application to strike out or stay bankruptcy proceedings]
This judgment was delivered by me on 8th December 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
McKenna King Dempster (Fraser A King), Hamilton, for the Judgment Creditor
Copy for:
Gregory John Jones, Judgment Debtor.
NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED v GREGORY JOHN JONES [2023]
NZHC 3542 [8 December 2023]
Introduction
[1] Mr Gregory Jones (Mr Jones) applies to stay or strike out an application to adjudicate him bankrupt by New Zealand Bloodstock Finance & Leasing Limited (NZ Bloodstock), or alternatively an order requiring the oral evidence of 10 witnesses.
Background
[2] NZ Bloodstock provides finance to assist customers, like Mr Jones, in financing the purchase and breeding of horses. The debt upon which NZ Bloodstock seeks to adjudicate Mr Jones bankrupt arises from two contracts between them: a contract for a credit facility dated 23 May 2016 initially for $200,000 but then increased (the Credit Contract); and a lease to purchase agreement dated 10 October 2017 (the Lease Agreement).
[3] In September 2019, NZ Bloodstock issued summary judgment proceedings seeking to recover outstanding debts under the Credit Contract and Lease Agreement, being amounts totalling $369,800.22 and $61,832 respectively, together with interest and solicitor-client costs of enforcement.
[4] On 5 June 2020, Jagose J granted summary judgment on what later transpired to be the outstanding debts only.1 Mr Jones appealed. Pending appeal, both Jagose J on 9 July 2020 and the Court of Appeal on 26 May 2021 dismissed applications to stay the judgment’s execution.2 At the same time Mr Jones filed related proceedings in the High Court alleging harassment and conspiracy, which Venning J struck out in part and otherwise stayed on 29 November 2021.3 On 25 August 2022, the Court of Appeal dismissed Mr Jones’ appeal against the summary judgment.4 Mr Jones subsequently
1 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1233, (2020) 25 PRNZ 347.
2 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1633; Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZCA 213.
3 Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220.
4 Jones v New Zealand Bloodstock Finance and Leasing Ltd [2022] NZCA 397.
unsuccessfully sought leave to appeal to the Supreme Court.5 Mr Jones then sought recall of the Supreme Court’s decision declining leave to appeal, and also sought recusal of some judges and leave to adduce further evidence. The Supreme Court dismissed all three applications.6
[5] NZ Bloodstock’s first attempt to adjudicate Mr Jones’ bankrupt for failing to pay the summary judgment amount was unsuccessful due to Registry issues beyond NZ Bloodstock’s control. Briefly, the sealed order relating to Jagose J’s summary judgment and a bankruptcy notice based thereon were set aside by Harland J on 28 May 2021 because Mr Jones’ had not been afforded sufficient opportunity to object to the interest and solicitor-client costs components of the order before it was sealed.7
[6] NZ Bloodstock subsequently had interest and costs determined by Jagose J on 23 June 2022,8 and the order was properly sealed for $645,148.33, comprising the outstanding debts, solicitor-client costs, and interest. Mr Jones appealed Jagose J’s costs and interest decision, but the Court of Appeal eventually deemed his appeal abandoned and on 12 May 2023 declined an application to extend Mr Jones’ filling time and to reopen the appeal.9
[7] Relying on the new sealed order, a bankruptcy notice was issued on 23 September 2022 and served on Mr Jones on 29 September 2022. Mr Jones’ application to set the notice aside and halt bankruptcy proceedings was then dismissed by Associate Judge Lester on 11 May 2023.10
[8] In May 2023, NZ Bloodstock applied to finally adjudicate Mr Jones bankrupt. This judgment concerns Mr Jones’ application to strike out or stay such proceedings, or alternatively to require the oral testimony of 10 witnesses before any adjudication decision is made.
5 Jones v New Zealand Bloodstock Finance and Leasing Ltd [2023] NZSC 98.
6 Jones v New Zealand Bloodstock Finance and Leasing Ltd [2023] NZSC 133.
7 Jones v New Zealand Bloodstock Finance & Leasing Ltd [2021] NZHC 1228.
8 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2022] NZHC 1477.
9 Jones v New Zealand Bloodstock Finance & Leasing Ltd [2023] NZCA 169.
10 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2023] NZHC 1131.
Adjudication order
[9] Given the protracted and entrenched nature of Mr Jones’ opposition to is adjudication, NZ Bloodstock’s counsel filed, on the day of the hearing, a memorandum seeking to proceed immediately with Mr Jones’ adjudication concurrently with his application for strike out or stay.11 While the hearing and this judgment can only determine Mr Jones’ interlocutory application, the arguments Mr Jones advanced in his submissions and in challenge of the underlying judgments directly raise the grounds set out in the notice of opposition to his adjudication. Thus, where I have heard submissions on points relating to Mr Jones’ ultimate adjudication, I make findings in relation to those submissions and NZ Bloodstock’s entitlement to an adjudication order.
Charging order and examination
[10] For completeness, NZ Bloodstock now has a final charging order over Mr Jones shares in a company called Harlow Holdings Limited (Harlow Holdings). It is permitted to continue with enforcement under s 31 of the Insolvency Act 2006 (the Act), despite seeking adjudication but was declined a sale order in respect of the shares.12 Additionally, based on Mr Jones’ assertion in his affidavit for this application at [28(c)], NZ Bloodstock has successfully sought an examination hearing set down for 1 February 2024.
Mr Jones’ application
[11]Mr Jones seeks orders:13
(a) That the Judgment Creditor’s application for adjudication [be stayed or] be struck out;
(b) [In the alternative,] in relation to the subpoena of, cross examination of, or provision of evidence by the witnesses:
11 Updated memorandum of counsel for the judgment creditor dated 3 November 2023.
12 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2023] NZHC 2111.
13 Interlocutory application by judgment debtor for stay or striking out application for adjudication or alternatively orders in relation to the taking of evidence dated 26 July 2023 at [1].
(i) Craig Lawrence
(ii)Barry Bowditch
(iii)Adrian Clark
(iv)Peter Westend
(v)Brian O’Shea
(vi)Marco Lopes
(vii)Luca Panizzi
(viii)François-René Bertin
(ix)Brent Gillovic
(x)Eion Fraser
[12]The grounds on which the orders are sought are:14
(a) In relation to the application for stay or strike out, s 30 of the Insolvency Act 2006 and the undertaking tendered to the Court by the Judgment Creditor.
(b) In respect of the witnesses referred to in 1 above that their evidence is necessary in order to:
(i) Establish the special circumstances that exist in relation to the evidence and justify going behind the judgment of the Court of Appeal and striking out the adjudication application.
(ii)Determine whether it is just and equitable to proceed with an order for adjudication.
Affidavit of Gregory John Jones dated 26 July 2023
[13]Mr Jones has made an affidavit in support of his application.15
[14] On leave to appeal to the Supreme Court, Mr Jones details lengthy delays and his concerns over the composition of the Court addressed in his recusal application. I note that by the hearing of this case the Supreme Court had addressed Mr Jones’ leave to appeal, recall and recusal applications.
14 At [2].
15 Affidavit of Gregory John Jones in support of notice of opposition to adjudication application by judgment creditor and applications by judgment debtor for orders in relation to hearing dated 26 July 2023.
[15] On his opposition to the application for adjudication, Mr Jones deposes NZ Bloodstock’s application was served on him on 9 July 2023 at about 5:30pm, which he says is outside the time permitted for service of High Court documents. He then mentions NZ Bloodstock’s application for charging orders over the Harlow Holding’s shares which he alleges were held by him as a trustee rather than personally. I note that application has also been determined by the High Court.
[16] On the requirements of the Insolvency Act 2006 and the judgment on which the adjudication application is based, Mr Jones says his notice of opposition sets out his basis for opposing adjudication. He believes he is entitled to challenge the Court of Appeal’s judgment and to call evidence to further his view. He says his defences have been outlined at each stage of the litigation, including before the Court of Appeal and Supreme Court. Mr Jones has taken the view that it is only necessary for him to raise a limited number of defences to persuade this Court there is a flaw in the Court of Appeal’s judgment on which this adjudication is based.
[17] On a breach of natural justice, Mr Jones says the Court of Appeal’s judgment relied upon McGrouther v Paulden to significantly reverse the evidential onus which exists in relation to summary judgment.16 He says neither that reversal nor the case was mentioned at any stage of the hearing, nor was he given an opportunity to file submissions post-hearing. His view is McGrouther does not apply and that he was refused a transcript to establish that the case was never raised, in breach of his entitlement as a litigant.
[18] On evidence for his defences, Mr Jones deposes he was never able to provide evidence additional to his own because third parties were unwilling to assist at risk to their personal and professional lives. He believes scrutiny of the facts through the adversarial process would have highlighted the unsatisfactory nature of NZ Bloodstock’s claim and those who have joined it to cause him financial harm. Mr Jones says his defences rest on actions of numerous people in killing, maiming, and otherwise interfering with his horses. He wishes to raise instances and further information which show the Court of Appeal’s decision is clearly flawed.
16 McGrouther v Paulden HC Christchurch CIV-2010-409-1124, 7 December 2010.
[19] On his Tivaci-Adalia filly, Mr Jones deposes he sent her to a sale on the Gold Coast in July 2020 and was advised before and during her preparation that she was in saleable condition with no major issues. He says almost immediately post-sale he saw a video of the filly exhibiting what he regarded as a horrific injury which he could not identify. He claims the filly was either sent to Australia in unsatisfactory condition or those in Australia caused the injury. He says he has raised this before Jagose J and the Court of Appeal but wishes to show the bankruptcy court evidence supporting this defence to prove he does not need to pay NZ Bloodstock. In support he wishes to call Brent Gillovic, Peter Westend, Brian O’Shea, Barry Bowditch and Luke McDonald17 who were involved in the filly’s care and sale, and all maintained the filly was fine when they last saw her.
[20] On his purchase of a mare called Woodpecker Hill, he says the mare was sold to him at a grossly inflated value by NZ Bloodstock, something which he raised before both Jagose J and the Court of Appeal. He says for litigation purposes he obtained an independent valuation of Woodpecker Hill by Adrian Clark (Mr Clark) nine months after his purchase, which demonstrated NZ Bloodstock valued the mare at 3,000 per cent more when it sold her. Mr Jones believes as a non-racing mare the difference of nine months should mean nothing in terms of value. He further claims Mr Clark refused to clarify if the date of valuation made any difference as Mr Clark was worried about his livelihood if he gave evidence against NZ Bloodstock. For this reason, he seeks examination of Mr Clark to help him prove NZ Bloodstock’s valuation was not just negligent but intentionally and fraudulently inflated.
[21] On his Reliable Man-Adalia colt, Mr Jones deposes a veterinarian’s intentional failure to deal with a small injury led to sale at the 2018 National Sales in Karaka and later in Sydney at a significant undervalue. Mr Jones says he has attempted to obtain evidence from Drs Marco Lopes and Luca Panizzi (Drs Lopes and Panizzi), equine surgery specialists at Massey University, as to the inadequate treatment of the colt to the point a court could conclude the veterinarian’s failure to treat was reckless to the point of intentional. Mr Jones says, like Mr Clark, both Drs Lopes and Panizzi do not
17 Despite deposing his wish to call Luke McDonald to give evidence, Mr Jones’ application does not include him among the list of 10 witnesses for which he seeks orders.
wish to assist for fear of retribution and being shunned by the thoroughbred community.
[22] On his Pierro-Saltatio filly, Mr Jones also alleges gross veterinary neglect to the point a clear inference of a conspiracy can be drawn. He says the foal was born with immediate complications and he attempts to rely on evidence of Dr François-René Bertin (Dr Bertin) of the University of Queensland to prove a conspiracy of gross neglect and mistreatment. He says Dr Bertin has given an affidavit in Australian court proceedings attesting it is surprising and difficult to understand the failure to send this filly to emergency care for over 11 hours. Mr Jones says van Bohemen J ignored or misinterpreted Dr Bertin’s evidence which limited his ability to defend his claim. Further, Mr Jones asserts Dr Bertin has declined to provide evidence for this proceeding as he is currently too busy.
[23] Mr Jones then says the instances above (a sample of many) and viva voce evidence of the requested witnesses will show that the conduct of members within the thoroughbred industry was abhorrent to an extraordinary degree such as to justify the bankruptcy court declining any adjudication order.
[24]In conclusion, Mr Jones makes the following points:
(a)A cross claim of a substantial nature exists as acknowledged by Associate Judge Lester in his decision not to set aside the bankruptcy notice.
(b)Mr Jones believes the merits of his allegations require close consideration and, until the Supreme Court has decided his allegations, there is no reason to conclude he has been anything other than truthful and staunch in his desire to protect himself and his family from the alleged wrongdoing.
(c)Given adequate warning he says he expects to be able to pay the debt if a court decides he is so liable.
(d)Adjudication would result in significant personal, reputational, and financial detriment as well as significantly compromising his role as a barrister.
(e)Mr Jones’ believes NZ Bloodstock’s actions are oppressive as they have conspired to commit unlawful acts and are willing to push legal arguments that have no possible basis for success.
(f)As his appeal with the Supreme Court should be resolved soon, he says the possibility of bankruptcy is not fair or reasonable having regard to his evidence.
NZ Bloodstock’s opposition
[25]NZ Bloodstock opposes the application on the following grounds:18
a. In response to the application for a stay or strike out:
i. Section 30 of the Insolvency Act 2006 does not apply as the amount in the bankruptcy notice is accurate. This argument advanced by the Judgment Debtor was rejected by [Associate Judge] Lester in the bankruptcy setting aside hearing.
ii. The requirements as set out in s 13 of the Insolvency Act 2006 have been satisfied, so the Judgment Creditor is entitled to apply for adjudication.
iii.The Judgment Debtor has committed an act of bankruptcy by failing to comply with the bankruptcy notice, and he failed to convince this Court that he had a cross-claim pursuant to s 17 of the Insolvency Act 2006.
iv. The undertaking tendered by Mr King on 20 April was that the Judgment Creditor would not seek final adjudication at the adjudication hearing before the Supreme Court had finally determined summary judgment liability of the Judgment Debtor. Filing for adjudication did not violate this undertaking.
v. On 2 August 2022, the Supreme Court dismissed the Judgment Debtor’s leave to appeal application.
vi. Liability has been determined by the Court of Appeal and Supreme Court. It cannot be relitigated in the enforcement
18 Notice of opposition to the judgment debtor’s applications to: (1) stay/strike out application for adjudication; and (2) obtain orders relating to taking evidence dated 10 August 2023 at [1]–[3].
proceedings. This is the incorrect forum for raising objections about liability.
vii.In his affidavit, the Judgment Debtor at paragraph 28(c) says, given adequate time, he will be able to pay the debt if the Court decides he is liable to the Judgment Creditor. Despite liability being finally determined by the Supreme Court, the Judgment Debtor has made no payments.
viii.The Judgment Debtor has been denied a stay of execution by both the High Court and the Court of Appeal. In assessing the balance of considerations, the Court ought not to grant a stay. This has already been determined by Jagose J in the High Court declining the Applicant a stay.19
ix. Downs J has granted the Judgment Creditor permission to continue with the adjudication process and the execution process.
b. In response to the evidence order applications:
i. The Judgment Debtor seeks to adduce evidence to challenge liability. The enforcement process does not afford him the opportunity to relitigate issues already determined by the Supreme Court.
ii. The Judgment Debtor seeks to turn an application for adjudication into what, in effect, would be a trial of the Judgment Debtor’s conspiracy and fraud claims.
iii.The decisions reached by the Court of Appeal and Supreme Court as to the merits of the Judgment Debtor’s claims are binding upon this Court.
iv. As per Rule 7.20 of the High Court Rules 2016, the Judgment Debtor was required to file affidavits in support at the same time as the application.
Legal principles
Rule 15.1 of the High Court Rules 2016 provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
19 New Zealand Bloodstock Finance & Leasing Ltd v Jones, above n 2, at [22]–[23].
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
This rule does not affect the court’s inherent jurisdiction.
[27]There are established criteria for strike out:20
(a)A strike out application proceeds on the assumption the pleaded facts are true, unless those pleaded facts are entirely speculative or without foundation.
(b)The cause of action or defence must be clearly untenable.
(c)The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law.
(e)The Court should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.
[28] A stay of civil proceedings may occur for reasons such as justice requiring the cause of action be determined at a later date,21 pending arbitration or pending another dispute resolution process agreed between the parties.22
[29] Broadly on adjudication, the principal requirements for court adjudication on a creditor’s application are in s 13 of the Act:
20 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney- General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
21 Hyslop v Society of Lloyd’s (1992) 6 PRNZ 204 (HC) at 217;
22 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR15.1.10].
13 When creditor may apply for debtor’s adjudication
A creditor may apply for a debtor to be adjudicated bankrupt if—
(a)the debtor owes the creditor $1,000 or more or, if 2 or more creditors join in the application, the debtor owes a total of $1,000 or more to those creditors between them; and
(b)the debtor has committed an act of bankruptcy within the period of 3 months before filing the application; and
(c)the debt is a certain amount; and
(d)the debt is payable either immediately or at a date in the future that is certain.
[30] Briefly stated, a creditor may bring a bankruptcy proceeding against a debtor who owes that creditor at least $1,000 and who has committed an act of bankruptcy within three months before the filing of the application. The sum must be a “certain amount” and payable immediately or at a future date that is certain.
[31] There are further relevant provisions in pt 2. Section 17 provides that a debtor commits an act of bankruptcy if:
(a)a creditor has obtained a final judgment or a final order against the debtor for any amount;
(b)execution of the judgment or order has not been halted by a court;
(c)the debtor has been served with a bankruptcy notice; and
(d)the debtor has not, within the relevant time limit, complied with the requirements of the notice or satisfied the court that they have a cross claim against the creditor.
[32] When hearing a creditor’s application, a court may, among other things, adjudicate the debtor bankrupt if the creditor has established the s 13 requirements;23 refuse to adjudicate the debtor bankrupt if those requirements are not established, or if the debtor is able to pay their debts, or if it is just and equitable that the court does
23 Insolvency Act 2006, s 36.
not make an order of adjudication, or for any other reason an order for adjudication should not be made;24 or halt the application for adjudication.25
[33] The Court may also halt or refuse the creditor’s application for adjudication if the debtor has appealed against the judgment or order underlying the bankruptcy notice and that appeal is still to be decided.26
[34] Section 37 of the Act confers a discretion on the Court to decline to make an order for adjudication:
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.
[35] The following general principles, extracted from the case law, are relevant to the Court’s discretion to refuse adjudication:
(a)The onus is on the debtor to show why an adjudication order should not be made.27
(b)In exercising its discretion, the Court may consider, inter alia, the following factors:
(i)the views of all affected parties, including the petitioner, other creditors and the debtor;28
24 Section 37.
25 Section 38.
26 Section 42.
27 McHardy v Wilkins & Davies Marinas Ltd (in rec) CA 54/93, 7 April 1993 at 3.
28 Re Sturdee [1985] 2 NZLR 627 (HC) at 635.
(ii)the wider public interest, including whether adjudication is “conducive or detrimental to commercial morality and the interests of the general public”;29
(iii)the circumstances in which the debt was incurred and whether those circumstances suggest that the creditor is acting unreasonably in pursing adjudication;30
(iv)whether adjudication would be pointless in the sense that the creditors are unlikely to receive payment;31 and
(v)whether adjudication would render the debtor unable to support themselves.32
(c)In exercising its discretion, the Court should also remain cognisant of the broader purposes of bankruptcy which include:
(i)allowing for administration of the debtor’s estate in the interests of creditors;
(ii)holding the debtor accountable for their debts;
(iii)punishing or stigmatising the debtor for misconduct;
(iv)protecting the community from a debtor who runs up credit without being able to honour it; and
(v)allowing the debtor to eventually take up commercial activity once freed from their liabilities after the discharge of their bankruptcy.33
29 Re Nisbett, ex parte Vala [1934] GLR 553 (SC) at 556.
30 Re Epirosa, ex parte Diners Club (NZ) Ltd HC Wellington B498/91, 6 March 1992 at 6.
31 Re Fidow [1989] 2 NZLR 431 (HC) at 444.
32 Re Epirosa, above n 30, at 7.
33 Sheppard v Blanchett [2012] NZHC 789, (2012) 3 NZTR 22-014 at [35]–[43].
(d)Ultimately, the Court must balance the various considerations relevant to an application when concluding whether the debtor has succeeded in showing that the order sought should not be made.34
Analysis
[36]The issues to be dealt with in this judgment are:
(a)whether the Court should order a stay, or strike out, NZ Bloodstock’s application for an adjudication order?
(b)in the alternative, whether the Court should order further evidence from the 10 witnesses as sought by Mr Jones?
[37]The issues are dealt with below.
Re-examination of underlying judgments
Mr Jones’ submissions
[38] Mr Jones submits that the New Zealand bankruptcy courts have the same powers as the Australian courts to look behind the judgments underlying the bankruptcy proceedings to ascertain whether there are issues with those judgments such that it is not appropriate to make an adjudication order. Mr Jones submits that the New Zealand courts have taken the view that our bankruptcy court does not have available to it the same powers as the Australian courts, with the result that the adjudication process can only ever be used to, in effect, suspend the operation of a judgment while its correctness is being assessed, most likely on appeal. He submits that this approach is exemplified in two recent decisions, Nightingale v James,35 and Ocean Energy Innovation Ltd (in liq) v Murray.36 He then refers to the judgment of Associate Judge Matthews in the Nightingale decision as setting out the position of the New Zealand bankruptcy courts:
34 McHardy v Wilkins & Davies Marinas Ltd (in rec), above 27, at 4.
35 Nightingale v James [2018] NZHC 965.
36 Ocean Energy Innovation Ltd (in liq) v Murray [2022] NZHC 1916.
[22] The New Zealand legislative framework enables the Court to consider issues raised in relation to an underlying judgment and, if those issues are found to be of sufficient concern, to exercise its discretion accordingly. If a court is not satisfied that it can form a firm view, it can afford time to a judgment debtor to take the matter up by way of an application for rehearing or appeal, as the case may be. But, because of the differences between the legislative provisions in Australia and New Zealand, this Court will not take the next step predicated in Ramsay and investigate the underlying judgment in the course of considering an application for adjudication. It will not embark upon an exercise akin to a retrial of the case which gave rise to the underlying judgment. Similarly, it will not engage in a process akin to an appeal. It will look at the underlying judgment to the extent that it needs to do so in order to assess the validity of a challenge to that judgment made by the judgment debtor. Then it will make a decision on whether to allow time for reconsideration of the judgment elsewhere, or dismiss the application, or to proceed to adjudication. Beyond that it is not in my view necessary to lay down any more rigid basis upon which the Court should approach this issue.
[39] Mr Jones submits that Associate Judge Matthews reached this view as a result of his assessment that the court can be satisfied in relation to an act of bankruptcy by a certificate issued under r 24.20 of the High Court Rules, which provides:
24.20 Applicant creditor’s solicitor’s certificate as to unpaid debt
A certificate by the applicant’s creditor’s solicitor to the effect that, after having made due inquiries, the solicitor is satisfied the debt remains unpaid, may be accepted by the court as sufficient prima face evidence that the debt remains unpaid.
[40] Mr Jones submits that r 24.20 is only effective in terms of the issue of whether the debt is paid or not, and does not satisfy the requirements of s 13 of the Act. He submits there is no difference between the legislation considered in the Australian High Court case of Ramsay Health Care Australia Pty Ltd v Compton,37 and the provisions of the Act.
[41] Mr Jones cites two passages from Ramsay which, in his submission, summarise the principles adopted by the High Court of Australia which allow a court to investigate issues with an underlying judgment:
[54] In point in principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal, or even as a default judgment or a judgment obtained by fraud may be set
37 Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28, (2017) 261 CLR 132 (footnotes omitted).
aside; nor is a Bankruptcy Court concerned to deny the effect of the judgment as “res judicata” between the parties to it. A Bankruptcy Court is not concerned to prevent the judgment creditor from invoking the ordinary process of execution available under the general law. Rather, a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order. A Bankruptcy Court has a statutory duty to be “satisfied” as to the existence of the petitioning creditor’s debt; a creditor should not be able to make a person bankrupt on a debt which is not provable.
…
[68] For the purposes of s 52 of the Act a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.
[42] Mr Jones submits there is not sufficient distinction in terms of s 52(1) of Australia’s Bankruptcy Act 1966 (Cth) to justify the New Zealand courts departing from the High Court of Australia’s position. He submits the requirements of s 13 require an assessment as to whether the debt is owed (subs (a)) and the fact it has not been paid (subs (c) and (d)). He submits r 24.20 of the High Court Rules only covers the second of these eventualities and submits following the principles in Ramsay the Court is able to look at whether the debt is owed.
NZ Bloodstock’s submissions
[43] Mr Osama, for NZ Bloodstock, submits that Mr Jones’ submissions that this bankruptcy court should re-examine liability despite the High Court, Court of Appeal and Supreme Court all concluding he is liable to pay the judgment debt, would erode certainty in the enforcement process, be a dangerous precedent to set, and re-write the legal landscape. On that basis, he submits Mr Jones’ submissions are untenable and misconceived.
[44] Mr Osama submits that even if this Court were to look behind the judgment, it would not be able to match the thorough analysis undertaken by the Court of Appeal and the Supreme Court, and notes that the Supreme Court said:38
The evidence plainly fell short of establishing a conspiracy; the applicant’s allegations were, at best, entirely speculative and lacking in credibility.
[45] Mr Osama refers to the Nightingale decision and the passage already quoted by Mr Jones.39 Mr Osama submits that even if the Australian approach is adopted, it only allows the Court to review the underlying decisions in narrow situations.
[46] Mr Osama submits that under the Australian approach, a judgment obtained after a trial or a hearing is generally a reliable indication of the true state of indebtedness because the merits of a claim and counterclaim have been tested under the rigours of adversarial litigation. He submits that, as such, the Australian approach clearly distinguishes such cases from situations where the judgment has been obtained by default or consent.
[47] Mr Osama submits that Mr Jones has misquoted Nightingale in an attempt to mislead the Court. When the actual paragraph is reviewed, it does not assist Mr Jones because this case has been through rigorous adversarial litigation and there has been no failure of Mr Jones to present his case’s merits.
[48] Mr Osama submits that Mr Jones already advanced this argument at the hearing in front of Associate Judge Lester in his attempt to set aside the bankruptcy notice. Associate Judge Lester analysed the Australian approach and, in declining to review the merits of the decision upon which the bankruptcy notice is based, he took the view that Mr Jones, is in effect, asking the High Court to carry out the same exercise he has asked the Supreme Court to carry out in his leave application, that is, to review the merits of the findings of the Court of Appeal.40 Associate Judge Lester cites the decision in Fava v Official Assignee:41
38 Jones v New Zealand Bloodstock Finance and Leasing Ltd, above n 5, at [16].
39 Nightingale v James, above n 35, at [22]. See [38] above.
40 New Zealand Bloodstock Finance & Leasing Ltd v Jones, above n 10, at [40]–[45].
41 At [41] citing Fava v Official Assignee [2012] NZHC 2980 at [21], referring to Corney v Brien
(1951) 84 CLR 343 (footnotes omitted).
[21] Fullager J gave a separate decision. He examined the law more closely. In particular, he considered the situation where there has been a trial on the merits, as opposed to a default judgment. He cited In re Flatau ex parte Scotch Whisky Distillers Ltd where Fry LJ said, in relation to the power to look behind a judgment in bankruptcy:
This power has never, so far as I am aware, been extended to cases in which a judgment has been obtained after issues have been tried out before a court.
Fullager J said:
No precise rules exist as to what circumstances call for an exercise of the power, but certain things are, I think, clear enough. If the judgment in question followed a full investigation at a trial in which both parties appeared, the Court will not re-open the matter unless a prima facie case of fraud or collusion or miscarriage of justice is made out.
Associate Judge Lester then goes on to cite Harrison v Harrison:42
The authorities, of which Petrie v Redmond is an example, are generally concerned not with a substantive fraud allegation on which a particular civil proceeding may be based. Rather, they focus on the way in which a particular judgment (especially where it is a consent or a default judgment) has been obtained (for instance through the fraud or collusion in the way the substantive judgment was obtained by the parties or counsel involved or through a miscarriage of justice).
[49] In summary, Mr Osama submits that the power to look behind a judgment is not designed to be used when the judgment has followed a contested hearing or trial. In this instance, as three different courts have analysed Mr Jones’ case through the adversarial process, his evidence has been thoroughly tested and found wanting. Mr Osama submits that, as such, Mr Jones cannot fit himself into the narrow category where the Court considers the underlying judgment.
[50] Mr Osama submits that while the Court can re-open the matter where there is a prima facie case of fraud, as held by Associate Judge Lester, the fraud relied upon by Mr Jones is not in relation to the obtainment of the judgment, but as a basis of his counterclaim. As such, he submits Mr Jones cannot rely on his fraud allegations to ask the Court to look behind the judgment. Mr Osama submits that in the findings of
42 At [41] citing Harrison v Harrison [2015] NZHC 254 at [31], referring to Petrie v Redmond (1942) 13 ABC 48 at 49; (1943) QSR 75.
the Court of Appeal and the Supreme Court as to Mr Jones’ liability, there are no “special circumstances” which would justify this Court reinvestigating liability.
[51] Mr Osama submits that where Mr Jones’ arguments have already been thoroughly tested and there is no credible allegation of fraud underlying the judgment, even the Australian approach will not assist him. While Mr Jones expresses concerns and reservations about the High Court, Court of Appeal and Supreme Court judgments, nothing he raises could amount to a special reason allowing this Court to re-examine liability. He submits that what Mr Jones is asking this Court to do is to hear an appeal of the Supreme Court’s decision, which is beyond this Court’s jurisdiction.
Conclusion in respect of re-examination of underlying judgments
[52] I am of the view that this Court does not have jurisdiction to examine, and should not examine, the underlying judgments in the High Court, Court of Appeal or Supreme Court. The reasons for this are:
(a)As Associate Judge Lester has held,43 the merits of Mr Jones’ counterclaim were ruled upon by the Court of Appeal in a decision binding on this Court. Similarly, the Supreme Court’s decision to decline Mr Jones’ application for leave to appeal is also binding on this Court. Therefore, this Court has no jurisdiction to re-examine these same issues raised by Mr Jones.
(b)Even if this Court was prepared to adopt the Australian approach in Ramsay, it does not assist Mr Jones. Arguments relied upon by Mr Jones in this Court have already been tested by the adversarial process in the High Court, Court of Appeal and finally in the Supreme Court, and there is no suggestion that any of these judgments has been obtained other than by rigorous application of the adversarial process.
43 New Zealand Bloodstock Finance & Leasing Ltd v Jones, above n 10, at [67].
[53] Clearly, NZ Bloodstock’s position that the requirements of s 13 of the Act are met is reasonably arguable and hence Mr Jones’ arguments in relation to re- examination of the underlying judgments and s 13 do not justify staying or striking- out NZ Bloodstock’s application for an adjudication order. Consequently, it is unnecessary in this judgment to canvas Mr Jones’ criticisms of the High Court, Court of Appeal and Supreme Court judgments. In addition, I am of the view that those arguments would not justify the Court ultimately refusing an adjudication order against Mr Jones.
[54] It remains for the Court to examine the other grounds Mr Jones has raised in argument to refuse an adjudication order and thus stay or strike out the adjudication application.
Alternative grounds to refuse an adjudication order
Section 17 — cross claim
[55] Mr Jones argues that his cross claim is equal to or greater than the judgment debt and as a result adjudication cannot proceed under s 17(1)(d)(ii) of the Act. In his submissions, Mr Jones summarises five defences to NZ Bloodstock’s claim as follows:
(a)First, that the second loan relating to the Lease Agreement is subject to challenge because of the negligent (or, in Mr Jones’ opinion, fraudulent) in-house valuation of a horse which induced him to enter into the Lease Agreement. He submits the Court of Appeal acknowledged the tenability of an argument pursuant to s 37(1) of the Contract and Commercial Law Act 2017, which he submits gives rise to entitlement by him to cancel the Lease Agreement and an obligation on the Court to acknowledge the necessity for this cancellation to be dealt with in accordance with the provisions of ss 42–45 of that Act.
(b)Second, that NZ Bloodstock has acted in a manner which is oppressive, harsh, unduly burdensome, unconscionable or in breach of reasonable standards of commercial practice under s 118 of the Credit Contracts and Consumer Finance Act 2003 (CCCFA). Accordingly, Mr Jones
submits that the valuation issue, which is raised above, would allow the Court to look at both the Credit Contract and the Lease Agreement contracts and potentially reopen these under s 120 of the CCCFA.
(c)Third, that NZ Bloodstock’s conduct is unconscionable.
(d)Fourth, that NZ Bloodstock has engaged in tortious conspiracy. Mr Jones examines the various legal principles which govern the tort of conspiracy and cites the authorities underlying these principles.
(e)Fifth, that NZ Blackstock’s conduct is fraudulent.
[56] Mr Osama submits that Mr Jones has already committed an act of bankruptcy so his timeframe to satisfy the Court that a cross claim exists under s 17(1)(d)(ii) has expired. He points out that Associate Judge Lester in his judgment concluded that Mr Jones could not rely on his counterclaim because it was rejected as a defence in the summary judgment context.44 Accordingly, Mr Osama submits the defences/counterclaim raised by Mr Jones are res judicata. He submits that in any event these arguments cannot be advanced in this proceeding as arguments about counterclaims are only available when a judgment debtor is seeking to set aside a bankruptcy notice pursuant to s 17 of the Act.
[57] Mr Osama submits that Mr Jones does not have a genuine triable cross claim as:
(a)The Court of Appeal has held that Mr Jones’ claims are not arguable, and this was upheld by the Supreme Court.
(b)Venning J struck out and stayed Mr Jones’ claim to file it in the High Court.45 Mr Jones has not taken any further steps to progress the claims since they were struck out and stayed, raising the inference that he does not genuinely propose to pursue them.
44 New Zealand Bloodstock Finance & Leasing Ltd v Jones, above n 10, at [39] and [45].
45 Jones v New Zealand Bloodstock Finance and Leasing Ltd, above n 3.
(c)Even if Mr Jones could successfully argue a cross claim exists, he cannot establish a quantum higher than the judgment debt.
[58] I am of the view that Mr Jones cannot rely on any of the defences/counterclaims he has raised to oppose the making an adjudication order pursuant to s 17(1)(d)(ii). The reasons for this are:
(a)the defences/counterclaims have already been considered four times by the Courts — in the original decision of Jagose J in the High Court, the Court of Appeal, the Supreme Court, and most recently by Associate Judge Lester in Mr Jones’ application to set aside the bankruptcy notice. In all of these forums, Mr Jones has been unable to satisfy the Court that any of the defences/counterclaims are sufficient to justify setting aside the original High Court judgment or setting aside the bankruptcy notice issued on the basis of that judgment;
(b)even if the cross claim could be established, there is no evidence that it would exceed the amount of the judgment debt for the purposes of s 17(1)(d)(ii).
[59] Accordingly, I am of the view NZ Bloodstock’s position in relation to s 17(1)(d)(ii) is more than reasonably arguable, and hence Mr Jones’ arguments in relation to s 17(1)(d)(ii) do not justify staying or striking out NZ Bloodstock’s application for an adjudication order. In addition, I am of the view that those arguments would not justify the Court ultimately refusing an adjudication order against Mr Jones.
Section 37 — discretion to refuse adjudication
[60] Mr Jones submits that s 37(b) of the Act requires NZ Bloodstock establish that he will not be able to pay his debts. He submits that he has attested that he is in a position to pay the debt if a court finally adjudges him liable to do so, but his position with NZ Bloodstock has been that he does not wish to. Mr Osama submits that
Mr Jones has asserted he is in a position to pay the debt if found liable, but he has not provided evidence of an ability to pay the debt within a reasonable time.
[61] Mr Osama also refers to the fact that on 3 August 2023, under r 17.10 of the High Court Rules, a notice was served on Mr Jones requiring him to complete a financial statement to evidence his ability to pay the judgment debt. Mr Osama submits Mr Jones’ refusal to do so illustrates a clear attempt by him to avoid proving his solvency.
[62] My view in respect of the argument raised by Mr Jones under s 37(b) is that without evidence of his financial ability to pay, I cannot be satisfied that Mr Jones is able to pay the judgment debt for the purposes of s 37(b). This is therefore not sufficient justification to refuse an adjudication order, nor so clear as to justify striking out or staying NZ Bloodstock’s application on this ground.
[63] Mr Jones also submits that under s 37(c), it would not be just and equitable for the Court to make an adjudication order. This submission is based on the fact that he has defences/cross claims against NZ Bloodstock as set out at [55]. In addition, he submits it would not be just and equitable for the Court to make an adjudication order as:
(a)he has not engaged in any conduct that requires sanction;
(b)there is no public interest in his being adjudicated bankrupt;
(c)he will suffer significant personal hardship and embarrassment if an order for adjudication is made;
(d)NZ Bloodstock’s application is oppressive;
(e)the judgments against him are unreliable, and the Court should look into the circumstances that gave rise to invoking the summary jurisdiction in such a serious civil matter.
[64] Mr Osama submits these arguments have already been raised and dismissed by Associate Judge Lester in his judgment and that Mr Jones cannot rely on the existence of a cross claim to oppose the adjudication order.
[65] I am of the view that, as has already been canvassed in this judgment, the alleged existence of a cross claim cannot be relied upon by Mr Jones, including the five defences he has raised, as grounds for the Court to exercise its discretion to refuse adjudication on the basis that it would not be just and equitable.
[66] In conclusion in relation to s 37, I am of the view that NZ Bloodstock’s position that there are no grounds for the Court to exercise its discretion to refuse an adjudication order under s 37 of the Act is more than reasonably arguable, and hence Mr Jones’ arguments in relation to s 37 do not justify staying or striking out NZ Bloodstock’s application for an adjudication order. In addition, I am of the view that those arguments would not justify the Court ultimately exercising its discretion under s 37 of the Act to refuse an adjudication order against Mr Jones.
Section 38 — discretion to halt adjudication
[67] Mr Jones argues his bankruptcy should be halted under s 38 of the Act for essentially the same reasons as the Court should exercise its discretion to refuse adjudication under s 37, and because his impending application to void the Supreme Court’s decision means it is in the interests of justice to halt adjudication.
[68] Mr Osama submits that Mr Jones’ argument that the bankruptcy should be halted should fail for the same reasons as these arguments fail under s 37.
[69] In relation to Mr Jones’ impending application to void the Supreme Court’s decision, that application is not before the Court so any assessment of it is not possible. It is noted, however, that Mr Jones has already sought unsuccessfully to recall the Supreme Court’s judgment,46 so further grounds to successfully overturn the Supreme Court’s judgment are not obvious.
46 Jones v New Zealand Bloodstock Finance and Leasing Ltd, above n 6.
[70] In conclusion on s 38, I am of the view that for the same reasons as Mr Jones’ arguments in relation to s 37 fail, the same arguments fail in respect of s 38 and do not justify staying or striking out NZ Bloodstock’s application for an adjudication order. In addition, I am of the view that his arguments under s 38 of the Act would not justify the Court ultimately halting the bankruptcy.
Section 42 — discretion to halt/refuse adjudication when judgment under appeal
[71] Mr Jones argues that s 42 should apply and his proposed application to the Supreme Court should be treated as an appeal of the underlying judgment and the adjudication should be halted pending the outcome of the appeal.
[72] Mr Osama submits that s 42 is only triggered if the underlying judgment is under appeal. Mr Jones’ leave to appeal application and subsequent recall application to the Supreme Court were both declined. He submits therefore that s 42 does not apply.
[73] My view on this argument is that, absent an application by Mr Jones to overturn the Supreme Court’s decision which I can assess, s 42 does not apply. As is submitted by Mr Osama, leave to appeal the underlying judgment has been declined by the Supreme Court and the attempted recall of that judgment has also been declined. Section 42 does not apply to justify this Court staying or striking out NZ Bloodstock’s application. In addition, I am of the view that Mr Jones’ arguments under s 42 would not justify the Court ultimately halting the bankruptcy under that section.
Inherent jurisdiction
[74] Mr Jones argues that the Court should, in its inherent jurisdiction, refuse an order for adjudication. He refers to his arguments relating to his requiring protection, as an officer of the Court, from abuse by third parties.
[75] Mr Osama submits that Mr Jones’ argument relating to his abuse of an officer of the Court is unfounded, speculative and non-credible, as has been found by the
higher Courts, and accordingly the Court should not exercise its inherent jurisdiction to stay adjudication.
[76] I am of the view that this argument has been tested in the higher courts, including the Supreme Court, and has been rejected making the matter res judicata. Therefore, there is no justification for the Court, in its inherent jurisdiction, to strike out or stay NZ Bloodstock’s application for an adjudication order. In addition, I am of the view that Mr Jones’ arguments in respect of the Court’s inherent jurisdiction would not justify the Court in ultimately refusing the adjudication order.
Section 31 — execution process alongside adjudication
[77] Mr Jones argues that under s 31 of the Act pursuing adjudication where another form of execution is being carried out, namely the charging order against the shares in Harlow Holdings, is not available. Mr Osama submits that Downs J gave permission, under s 31(3), for the charging order execution process in respect of the shares to continue.47 Furthermore, in respect of the order for examination of Mr Jones pursuant to r 17.12 of the High Court Rules, Associate Judge Brittain held it was not an execution process so does not trigger s 31.
[78] In my view, s 31 of the Act is inapplicable to the present case and is not a reason to strike out or stay NZ Bloodstock’s application. In addition, I am of the view that Mr Jones’ arguments in relation to s 31 of the Act would not justify the Court in ultimately refusing the adjudication order.
Overall conclusion on grounds for stay or strike-out of the application
[79] I have found NZ Bloodstock’s case is far beyond reasonably arguable and as such there are no successful grounds to justify staying or striking out NZ Bloodstock’s adjudication application. In addition, I have found that none of Mr Jones’ arguments would justify the Court in ultimately refusing the adjudication order or halting the bankruptcy.
47 New Zealand Bloodstock Finance & Leasing Ltd v Jones, above n 12, at [44].
Order for witnesses to give evidence
[80] Mr Jones submits, in the alternative, that the Court should exercise its discretion and proceed to a trial whereby 10 witnesses give evidence. In summary, Mr Jones elaborates on evidence by the following witnesses:
(a)Dr Craig Lawrence — Mr Jones seeks Dr Lawrence’s evidence in relation to treatment of his colt which was detected with a swollen hock on 3 November 2017. Mr Jones alleges this was an example of an intentional failure to diagnose and treat a valuable animal which belonged to him.
(b)Drs Lopes and Panizzi — Mr Jones seeks Drs Lopes and Panizzi’s evidence in relation to what the proper treatment of his colt would have entailed.
(c)Mr Clark — Mr Jones seeks Mr Clark’s evidence in relation to the value of a mare owned by him under the name of Woodpecker Hill which was the subject of the Lease Agreement loan. This evidence relates to the mare’s fraudulent valuation.
(d)Dr Bertin — Mr Jones seeks Dr Bertin’s evidence in relation to treatment of horses by another veterinary clinic and a horse farm, to a point where Mr Jones submits he can establish the conduct in question is so aberrant that the pattern of conduct is plainly a conspiracy. Dr Bertin’s evidence concerns his treatment of a valuable foal in Australia.
(e)Messrs Gillovic, Westend, O’Shea and Bowditch — Mr Jones seeks these witnesses’ evidence in relation to foul play in the preparation and sale in Australia of a filly belonging to him.
(f)Mr Eion Fraser – it is unclear from Mr Jones’ submissions what the evidence of Mr Fraser might be.
[81] Mr Jones submits that provision of evidence by these witnesses will remove from doubt the gaps that exist in the reasoning of the various courts about what occurred with his horses. He submits that the evidence of these witnesses will provide a basis for this Court to reject the view “that [he] owe[s] what is claimed” so that adjudication should not proceed. He submits it further establishes the basis for his defences/counterclaim, and the applicability of the just and equitable principles.
[82] Mr Osama submits that Mr Jones, by attempting to have these witnesses give evidence, is attempting to have a full trial, which all three courts have declined. He submits that Mr Jones is attempting to turn this proceeding into a trial of his conspiracy and fraud allegations which have been previously struck out and stayed by Venning J and dealt with by Associate Judge Lester in his judgment:48
the inescapable point is that his submission that further evidence might support his claims in respect of the issues canvassed above, does not answer the fact that the merits of his counterclaim were ruled upon by the Court of Appeal in a decision binding on me.
[83] Mr Osama submits that in addition to the Court of Appeal ruling on the merits of his counterclaim, the Supreme Court has now also done so.
[84]Mr Osama also submits that in any event the evidence is inadmissible because:
(a)it is not relevant as it does not tend to prove or disprove anything that is of consequence in this proceeding, and is therefore inadmissible under s 7 of the Evidence Act 2006; and
(b)its probative value is non-existent yet there is a significant risk that the evidence will needlessly prolong the proceeding (and it would be unfairly prejudicial to NZ Bloodstock), and therefore will be inadmissible under s 8 of the Evidence Act.
[85] Finally, Mr Osama submits that an evidence order would be wholly unsatisfactory because Mr Jones does not know what the witnesses will say, but it will
48 Jones v New Zealand Bloodstock Finance and Leasing Ltd, above n 10, at [67].
nonetheless mean that all witnesses will bear the costs of their appearance when the evidence is almost certainly going to be irrelevant.
Conclusion in respect of the order for witnesses to give evidence
[86] The order sought by Mr Jones to require the witnesses to give evidence should be dismissed. The reasons for this are:
(a)the arguments in respect of which the witnesses are expected to give evidence have been canvassed in the three Court decisions, and no trial has been ordered;
(b)to permit the summonsing of witnesses would effectively allow a trial which has been declined by the High Court, the Court of Appeal and the Supreme Court, the decisions of the Court of Appeal and the Supreme Court being binding on this Court.
Result
[87] As a consequence of the conclusions I have reached at [52],[54],[58],[59], [62], [65], [66], [70], [73], [76], [78] and [79], I am of the view that Mr Jones’ application that the Court stay or strike-out NZ Bloodstock’s adjudication application should be dismissed. In addition, I am of the view that none of Mr Jones’ arguments would justify the Court ultimately refusing the adjudication order or halting the bankruptcy.
[88] Additionally, based on the conclusions I have reached at [86], I am of the view Mr Jones’ application to require the Court to order witnesses to give evidence should be dismissed.
Orders
[89]I make the following orders:
(a)Mr Jones’ application to stay or strike out NZ Bloodstock’s application for an adjudication order against Mr Jones is dismissed;
(b)Mr Jones’ alternative application for the subpoena of, cross- examination of, or the provision of evidence by the 10 witnesses named in his application, is dismissed.
(c)If Mr Jones does not pay the amount of $734,563.49 to NZ Bloodstock by 1 February 2024:
(i)The examination pursuant to r 17 of the High Court Rules 2016, ordered by Associate Judge Brittain by minute dated 5 October 2024 in proceedings CIV-2019-404-1822, will go ahead; and
(ii)As I have determined that none of the arguments raised by Mr Jones would justify the Court refusing an adjudication order or halting the bankruptcy, NZ Bloodstock shall be entitled to an adjudication order, to be granted at the first available opportunity after 1 February 2024.
[90] As Mr Jones has been unsuccessful on all issues, costs should follow the event. Counsel for NZ Bloodstock is to submit a memorandum as to costs (not exceeding 5 pages) within 10 working days of the date of this judgment, and Mr Jones will file any memorandum in reply (not to exceed 5 pages) within 5 working days of receipt of counsel for NZ Bloodstock’s memorandum. A decision as to costs will then be made on the papers.
…………………………….. Associate Judge Taylor
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