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Nightingale v James

Nightingale v James

Case [2018] NZHC 965 7 May 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001810

[2018] NZHC 965

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of BRIDGET PILISITA MELEKOULA JAMES

BETWEEN

GEOFREY ALAN NIGHTINGALE and

LINDA MARIA NIGHTINGALE as trustees of the Bolton Trust
Judgment Creditors

AND

BRIDGET PILISITA MELEKOULA JAMES

Judgment Debtor

Hearing: 19 April 2018

Appearances:

P J Clark and B O’Callahan for Judgment Creditors Ms James, Judgment Debtor, self-represented

Judgment:

7 May 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

This judgment was delivered by me at 3.00 pm on 7 May 2018 pursuant to Rule 11.5 of the High Court Rules

Solicitors:
Smith & Partners, Auckland

NIGHTINGALE v JAMES [2018] NZHC 965 [7 May 2018]

[1] On 23 November 2016, the District Court entered judgment against the judgment debtor, Ms James, on proceedings brought by the judgment creditors in respect of an agreement for sale and purchase of a property in Auckland. Judgment was entered in the sum of $60,000, together with interest, as damages for failure to pay the deposit under the agreement, $8,121.75 for lost interest on the unpaid portion of the settlement price, and $144.86 for rates paid on the property.

[2] By a judgment dated 6 March 2017, Ms James was ordered to pay costs to the judgment creditors in the sum of $31,372.50 and disbursements in the sum of
$4,186.82. The judgment is not under appeal, nor has the debtor applied to set it aside. It is a final judgment, entered after a trial.

[3] The judgment creditors apply to adjudicate Ms James bankrupt based on these two judgments. A bankruptcy notice served on Ms James did not result in any sum being paid under either of the judgments. Ms James opposes the making of an order for adjudication. She says that the judgment in the District Court was obtained by fraud as the copy of the agreement for sale and purchase on which the judgment creditors sued bear two sets of marks which appear to be the initials of her and her husband, but are not. She says that she and her husband did not sign, by way of acceptance, the counterclaim made by the judgment creditors as vendors at an increased price above their original offer. She says that these apparent initials were forgeries of her and her husband’s initials.

[4] I review, first, the approach of the Court to looking at liability for a debt, beyond the judgment on which a bankruptcy application is based. Then I review the facts called into issue by Ms James.

The law

[5] Section 36 of the Insolvency Act 2006 provides that the Court may, at its discretion, adjudicate a debtor bankrupt if the creditor has established the requirements set out in s 13. These requirements are that the debtor owes the creditor $1,000 or more, the debtor has committed an act of bankruptcy within a period of three months before the filing of the application,…

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 Nightingale v James

Details

AGLC: Nightingale v James [2018] NZHC 965
Case: [2018] NZHC 965
Decision Date: 7 May 2018

CaseChat Overview and Summary

Nightingale and Nightingale as Trustees of the Bolton Trust, the judgment creditors, seek an order for the adjudication of Bridget James as bankrupt, relying on two District Court judgments entered against her. The first was for $60,000, together with interest, as damages for failure to pay the deposit under an agreement for sale and purchase of property. The second was for costs in the amount of $31,372.50 and disbursements of $4,186.82. A bankruptcy notice served on Ms James did not result in any sum being paid under either of the judgments. Ms James opposes the making of an order for adjudication. She says that the judgment in the District Court was obtained by fraud as the copy of the agreement for sale and purchase on which the judgment creditors sued bears two sets of marks which appear to be the initials of her and her husband, but are not. She says that she and her husband did not sign, by way of acceptance, the counterclaim made by the judgment creditors as vendors at an increased price above their original offer. She says that these apparent initials were forgeries of her and her husband’s initials. The Court reviews the approach of the Court to looking at liability for a debt, beyond the judgment on which a bankruptcy application is based. The Court reviews the facts called into issue by Ms James. The Court finds that the challenge to the judgment of the District Court is based on a wish to refer “version 3” of the agreement for sale and purchase to a fingerprint analyst to determine whether Ms James has ever in fact touched this document. The Court finds that the District Court judgment is not under appeal and there is no application to the Court to set it aside, nor is there an application for leave to appeal out of time. The Court finds that even if testing for fingerprinting may assist a court in deciding whether Ms James had ever touched “version 3”, that in itself would only be one further element in a substantial matrix of evidence because a document can be signed without fingerprints being placed on it. The Court finds that further examination of the judgment is well outside the ambit of an enquiry this Court will make on an application of this kind. The Court is satisfied that the Court can and should proceed on the basis of a final judgment of the District Court. The Court finds that Ms James has significant unsatisfied indebtedness pursuant to final orders of a court and informed the Court that giving further time for the judgment to be met would not assist. The Court finds that Ms James is insolvent. The correct course is for adjudication to follow.

The Court adjudicates Ms James bankrupt. The Court orders that she pay costs to the judgment creditor on a 2B basis together with disbursements fixed by the Registrar.

Orders