Oceana Gold New Zealand Limited v McNab
[2012] NZHC 2335
•11 September 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2012-412-000310 [2012] NZHC 2335
IN THE MATTER OF the Insolvency Act 2006
BETWEEN OCEANA GOLD NEW ZEALAND LIMITED
Judgment Creditor
ANDGORDON WALLACE CAMERON MCNAB
Judgment Debtor
Hearing: 4 and 11 September 2012 (Heard at Christchurch)
Appearances: A Cunninghame for Judgement Creditor, and on behalf of Waitaki
District Council (as a creditor in support) G W C McNab on his own behalf
Judgment: 11 September 2012
JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to adjudication in bankruptcy]
[1] This proceeding involves an application by Oceana Gold New Zealand
Limited for an order adjudicating Gordon Wallace Cameron McNab bankrupt. [2] This is the Court’s judgment in relation to that application.
Orders
[3] For reasons which I will immediately come to I make the following orders: (a) Gordon Wallace Cameron McNab is adjudicated bankrupt;
(b) The costs of this proceeding are reserved;
OCEANA GOLD NEW ZEALAND LIMITED V MCNAB HC CHCH CIV-2012-412-000310 [11 September
2012]
(c) All issues relating to Mr McNab’s conduct vis-à-vis the Court and others in Court in the course of this proceeding are reserved to this Court for further decision.
(d) This order is timed at 2.29 pm.
A debt
[4] On 31 October 2011, the Environment Court issued a decision on costs. The decision was as follows:
A. The applications for costs are granted.
B. Mr TD Hay and Mr GWC McNab are each ordered to pay: (i) $7,000.00 to the Waitaki City Council (sic); and
(ii) $7,000.00 to Oceana Gold New Zealand Limited.
[5] The costs orders were subsequently subjected to the certification of judgment process provided for under r 12.11 of the District Courts Rules for evidential purposes only. As Mr McNab described it to me in submissions this morning, the certificate which was issued was the crux of the submissions he wished to make; I start with this issue.
[6] A judgment creates a judgment debt immediately if it is an order to pay a specific amount, is final and is an actual direction to pay. I refer by way of example to the discussion of Asher J in Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd in which his Honour had to deal with a contest relating to costs and interest in a different situation to the present. His Honour identified when a judgment debt is not
created:1
No judgment debt for costs is created until there is an order to pay a specific amount. For there to be a judgment debt there must be a final and actual direction to pay.
1 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-7207, 21
December 2011 at [18].
[7] For that statement of the law, his Honour referred to well-settled authorities including the English decision in Garner v Briggs2 and the decision of the New Zealand Supreme Court, as it then was, in Treadwell v Public Trustee.3
[8] There can be no doubt applying that test that the order of the Environment
Court dated 31 October 2011 created a judgment debt.
Mr McNab’s concerns with certification
[9] Mr McNab has referred to a number of aspects of the nature of the Environment Court judgment and of the subsequent certification process. Each of the matters to which he referred me on analysis have no validity. Central to Mr McNab’s misconception is his equating the process which a creditor is required to adopt in the insolvency jurisdiction to provisions in legislation which deal with the enforcement process. This adjudication application is not an enforcement process. I illustrate the degree of confusion in Mr McNab’s submissions by reference to a central section provision on which he relied, namely s 286 Resource Management Act 1991. That provision states:
286 Enforcing orders for costs
An order for costs made by the Environment Court may be filed in the District Court of the district named in the order and then becomes enforceable as a judgment of the District Court in its civil jurisdiction.
[10] This creditor does not seek to enforce the judgment either in the District Court or elsewhere. This creditor brings a judgment debt to the Court, says that the debt has been the subject of the bankruptcy notice procedure and says that there is therefore evidence (which has not been rebutted) that the debtor is unable to pay his debts.
[11] In submissions this morning, Mr McNab sought to take me to that part of the order made by the Environment Court which affects what is referred to in the decision as the “Waitaki City Council”, although the reference to appearances states
that Mr A J Logan was appearing for the Waitaki District Council when seeking
2 Garner v Briggs (1858) 27 LJ Eq 483.
3 Treadwell v Public Trustee [l944] NZLR 778 (SC) at 781.
costs. How the judgment of the Environment Court as it affects Waitaki District Council is ultimately to be dealt – with whether it needs to be regularised for what is a patent error on the face of the judgment, or has to be dealt with inconveniently through some appeal or review process – is not for this Court. I am not dealing with the position of the Waitaki District Council in this proceeding. I am dealing with the application of Oceana Gold New Zealand Limited. The Waitaki District Council has appeared today, also through Ms Cunninghame, as a creditor in support but its rights are not in issue unless and until it is substituted as an applicant in this proceeding.
[12] Mr McNab further sought to develop submissions flowing from the requirement under s 286 Resource Management Act as to the filing of an order in the District Court of the district named in the order. For the reasons I have stated, s 286 of the Act is not in point. If I were wrong in that conclusion I would still have found nothing in Mr McNab’s point. The Environment Court did not name a district in its costs order. What clearly occurred was that Judge Whiting, sitting as he normally would in Auckland, issued his costs judgment on the papers. It was thus the District Court at Auckland which stamped the decision of the Environment Court in addition to the sealing which the Environment Court had undertaken. In the absence of a district named in the order itself, it was clearly appropriate that the filing was dealt with through the District Court at Auckland. Even were that not the case, the matter would fall to be dealt with appropriately by reference to the provisions of s 418 of the Insolvency Act 2006, to which I will return. That provision would equally provide an answer to Mr McNab’s submissions.
[13] I accordingly find that Oceana Gold New Zealand Limited is a creditor of Mr McNab as it asserts in its application for the amount of the judgment debt which is pleaded.
Procedural background
[14] It is now necessary to turn to some procedural background. This was a resumed hearing of an adjudication application which the Court commenced hearing on 4 September 2012 after earlier adjournments of the proceeding.
[15] The file is bereft of appropriately pleaded documents on the part of Mr McNab. Mr McNab has filed no admissible evidence in the proceeding. I am informed by Mr McNab that following the service of a bankruptcy notice upon him he took steps to file documents which he called “application to strike out bankruptcy notice and memorandum”. Mr McNab informs me that both documents were dated
4 July 2012. The common ground is that the Court refused to accept such documents for filing. I have no record as to the Registry position in relation to those documents but surmise that having regard to the date of service of the bankruptcy notice, namely 17 May 2012, the Registry may have considered any such document to be out of time. In any event, the documents have never been filed in the sense of received onto the Court file and I do not have them before me. Mr McNab did not have copies with him in the course of the resumed hearing today.
[16] The next document filed by Mr McNab followed the service of the adjudication application and associated documents upon him on 10 July 2012. Mr McNab filed a document dated 14 July 2012 which was headed “Appearance under protest to jurisdiction”, the document being filed on 16 July 2012. The Registry has treated that document as not attracting a filing fee and it is a document properly filed. Subsequently, on 7 September 2012 and today, 11 September 2012, Mr McNab has filed two additional “protests to jurisdiction” which he has asked be considered together with his 14 July 2012 document. I have done so.
Hearing on 16 July 2012
[17] The filing of the original “protest” was followed shortly afterwards by the first call of this proceeding on 16 July 2012. Mr McNab appeared in person on his own behalf as he has at each subsequent hearing. The issues he had raised in his appearance under what he called his protest to jurisdiction were the subject of submissions at that hearing. One of the points which concerned Mr McNab was the commencement of the proceeding at Dunedin, whereas he asserted through his appearance under protest to jurisdiction, but without filing evidence, that he was correctly to be served in Christchurch as that was now his place of residence. The matter was dealt with appropriately by transferring the proceeding to Christchurch, for which an order was made by Associate Judge Matthews that day – 16 July 2012.
Counsel and Mr McNab also addressed the Judge on issues raised in his document as to whether the Environment Court orders constituted a final judgment of that Court.
[18] Mr McNab, at that point, clearly had it in mind that something should be done to set aside the Environment Court orders. Associate Judge Matthews recorded this, having heard from the parties:
[6] Mr McNab also indicated that he does not accept the validity of the judgment of the Environment Court, considering it not to be a final judgment given that he apparently intends to apply to that Court to set it aside. I have ruled, and now record, that unless and until it is set aside, it remains a final judgment. No step has been taken to set aside the judgment notwithstanding the fact that it was entered nine months ago. When I asked Mr McNab whether there was any reason why he had not yet applied to set aside the judgment which was entered nine months ago, he responded that he “decided to do it at a time of his own choosing”.
[19] The Judge also records matters, again without evidence filed by Mr McNab, that Mr McNab put forward from the bar table. His Honour records:
[7] Mr McNab has indicated that both he and Mr Hay are in fact solvent.
On that basis it would seem that he intends to oppose the adjudication, though there is no formal opposition to the adjudication at this point as Mr McNab has proceeded by way of protesting to the jurisdiction of the Court. I record this point, however, because he has offered to pay into the account of the Registrar of the Court the sum of $14,000 which he suggests is more than a sufficient sum to meet the outstanding judgment of the Environment Court and any award of costs that might be made against him on the current proceeding. He indicated that Mr Hay also makes an offer to pay $14,000 into court. Counsel for the judgment creditor has indicated that that would appear to be an acceptable process and if that step is taken it would seem that the application to bankrupt Mr McNab might not proceed. However, this remains hypothetical given that the funds referred to have not been paid in and nor has there been an opportunity for this possible step to be considered.
[20] His Honour then made the requested order transferring the proceeding to the
High Court at Christchurch.
[21] Since 16 July 2012 it is a matter of common ground that neither Mr McNab, in relation to the judgment debt he incurred, nor Mr Hay, in relation to his debt, has made any payment into Court. In the course of subsequent events to which I will
refer, Mr McNab has produced (again not in evidential form) a bank statement of the Bank of New Zealand which records that he and Mr Hay, as partners, have funds on call. As late as today, Mr McNab has waved in front of me a plastic envelope apparently containing money which he says indicates his ability to settle the debt. None of that constitutes either a payment in satisfaction of the debt or properly admissible evidence of solvency.
Hearing on 7 August 2012
[22] Following the hearing on 16 July 2012, this proceeding stood adjourned for call on 7 August 2012. Again, Mr McNab appeared on his own behalf and Ms Cunninghame for Oceana Gold New Zealand Limited.
[23] The hearing proceeded on 7 August 2012.
[24] That morning, 7 August 2012, Mr McNab had sought to file a document entitled “Interlocutory Application”. It was not accepted for filing by the Registry as Mr McNab did not tender the required filing fee. He has not done so subsequently. I have seen the document in the course of Mr McNab’s submissions. I record that, although called “Interlocutory Application” it is essentially a document which invites the Court to dismiss the adjudication application. (In other words, it is more in the nature of a notice of opposition).
[25] Associate Judge Matthews’ handwritten minute of the attendances that day records:
McNab: accepts he has been validly served: no reason why we cannot proceed today.
Cunninghame: debt remains unpaid but not prepared solicitor’s certificate.
Confirm as counsel the debt remains unpaid.
McNab: “not suggesting debt is paid”.
Presents application for adjournment. Ruling:
1.There is an enforceable judgment of a court of competent jurisdiction.
2.There is an expired bankruptcy notice – debtor is presumed to be unable to pay debts.
3.The statement from the BNZ suggests there are funds available to pay the debt.
4.Application is adjourned to 4 September 2012. Affidavit to be filed from officer of the BNZ advising immediate availability of funds exceeding the judgment debts.
[26] Mr McNab was present in Court when the Judge made his directions on 7
August 2012. The period of the adjournment was four weeks which included the time for filing an affidavit from the bank. Any other issues of evidence which Mr McNab wished to address on his own behalf were matters for his judgement and were not made subject to the direction of the Court. Mr McNab, in subsequent submissions to me, has made something of the fact that there was a delay of some weeks in a copy of the Judge’s minute being made available to him. Nothing can turn on such when the terms of the directions made on discussion with Mr McNab and counsel on 7 August 2012 were clearly stated.
[27] I have recorded in a previous minute (4 September 2012) that I see the direction by Judge Matthews for Mr McNab to file an affidavit from BNZ as essentially being a matter of assistance to a debtor appearing in person as indicating a minimum requirement for evidence. Mr McNab, in his submissions to me, disagrees with that construction but the reality is the direction of the Court would have been of assistance to Mr McNab if he had taken advantage of it. He chose not to take advantage of it by either getting the BNZ to produce an affidavit or producing his own evidence independent of the BNZ as to his comprehensive position regarding assets, liabilities, income and outgoings. The Court has had no admissible evidence on those matters from the debtor.
[28] The only financial document produced in a sense by way of evidence by Mr McNab was the BNZ statement. It is not admissible evidence but, to the extent I might consider it, I record that it indicates that customers by the name of Trevor David Hay and Gordon Wallace Cameron McNab have a bank account trading as Deepdell Station and that as at 7 August 2012, the combination of accounts 000, 001 and 002 contained available credits in excess of $344,000. The matter then came before me pursuant to the previous adjournment on 4 September 2012 for hearing.
On that day, Mr McNab provided a further document for the Court by email. Again, it is not properly in evidence but I identify it as a document which appears to be a contract concerning mineral exploration dated 27 June 1997. Mr McNab has made no further submissions to me about it and I do not take it further.
Commencement of this hearing (4 September 2012)
[29] I commenced the hearing of this proceeding on 4 September 2012. Before the end of the hearing I saw fit to adjourn the proceeding to today’s date for completion. I issued a minute at the conclusion of that part of the hearing which occurred on 4 September 2012 in the presence of Ms Cunninghame and Mr McNab. I attach that minute as Appendix A to this judgment. I leave that minute to speak for itself as to the developments which occurred that day, save to refer to the orders which I made. The first order was an enlargement of the time for compliance with the BNZ affidavit requirement to 7 September 2012. I made that enlargement upon discussion with Mr McNab as to my intentions. I allowed him, in fact, slightly longer time than he had suggested was required.
[30] I also added this stipulation so as to make it clear to Mr McNab that it was for him to consider what evidence he needed as to solvency:
Any other evidence which Mr McNab intends to rely on at the hearing is to be the subject of an application for extension of time for the filing of such documents, to be filed no later than 4.00 pm, 7 September 2012, such application to have attached to it the completed affidavit or affidavits which Mr McNab seeks to rely on in addition to the Bank of New Zealand affidavit.
[31] Yet again, between that date and today’s date, Mr McNab has filed no evidence. For completeness, although Mr McNab has filed no evidence about it, he has indicated to the Court that persons unnamed in the BNZ do not regard the Court’s directions as allowing realistic time. I am not concerned by that development if it is true. Mr McNab initially had four weeks to comply with the earlier direction and there is no evidence as to the bank’s position in that time. When Mr McNab addressed me on these matters on the first day of the hearing, he referred in detail to concerns that he had had about his, and possibly Mr Hay’s privacy, as explanations for his failure to obtain evidence from the Bank. He indicated that he
did not want the Bank having a record of his need for his financial affairs to be the subject of evidence in this Court proceeding. Mr McNab, like any other litigant before the Court has to make his own decisions about priorities and tactics. He has left himself in this case in a position where he has simply adduced no admissible evidence as to solvency. In short, he appears to have staked almost everything on knocking out the bankruptcy notice on procedural grounds. The tactical approach has been accompanied by a repeated reference in submissions to his assets, his means, money he has present, and ability to satisfy costs orders which he could meet that day by bank cheque if the Court directed it. I add on information just provided to me by Ms Cunninghame and confirmed by Mr McNab that a costs order for wasted costs which I made on 4 September 2012 was satisfied yesterday. That leaves, of course, the debt itself which gave rise to this bankruptcy notice.
This Court’s jurisdiction to deal with procedural error.
[32] Section 418 of the Insolvency Act 2006 is a remedial provision. It is headed
“Defects in proceedings” and it provides:
418 Defects in proceedings
(1) A proceeding under this Act must not be invalidated or set aside for a defect (which includes misdescription, misnomer, or omission) in a step that must be taken as part of, or in connection with, the proceeding, unless a person is prejudiced by the defect.
(2) The Court may order the defect to be corrected, and may order the proceeding to continue, on the conditions that the Court thinks appropriate in the interests of everyone who has an interest in the proceeding.
[33] When this matter came before Associate Judge Matthews at its first hearing, the Court had before it what Mr McNab referred to as protests to jurisdiction but might more appropriately have been dealt with as interlocutory applications in the context of the adjudication proceeding itself. It is clear from the Judge’s minute that the Court was intending to deal with the alleged defects as raised by Mr McNab.
[34] Ms Cunninghame filed and spoke to written submissions identifying s 418 of the Act. She identified the remedial nature of s 418. Mr McNab effectively invites me to reconsider the directions made by Associate Judge Matthews to remedy the
situation to which he referred. The proceeding was transferred to Christchurch to meet Mr McNab’s concerns as to place of residence. For the reasons I have expressed already, I do not find anything else in the procedures adopted which call for repair or remedy. If I am to treat myself as having jurisdiction to re-deal with Mr McNab’s protest to jurisdiction which I do not believe is necessary, I would have made exactly the same directions as did his Honour Associate Judge Matthews. The proceeding would have been transferred to Christchurch. The other issues raised by Mr McNab would be found not to have given rise to any deficiency for the reasons I have already stated.
Adjudication under the Insolvency Act 2006
[35] I then come to the Court’s jurisdiction on the substance of this proceeding.
By s 11 Insolvency Act, I may adjudicate Mr McNab bankrupt if:
(a) a creditor of the debtor has applied under section 13 for the debtor's adjudication; and
(b) the debtor has committed an act of bankruptcy.
[36] Under s 13 of the Act, a creditor may apply for a debtor to be adjudicated bankrupt if:
(a) the debtor owes the creditor $1,000 or more (which is the case); and
(b)the debtor has committed an act of bankruptcy within the period of 3 months before the filing of the application (to which I will return); and
(c) the debt is a certain amount (which it is); and
(d)the debt is payable either immediately or at a date in the future that is certain (the former of those two being the case).
[37] By s 17 of the Act 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 (which is the case); and
(b) execution of the judgment or order has not been halted by a court
(which is the case); and
(c) the debtor has been served with a bankruptcy notice (which is the case); and
(d)the debtor has not, within the time limit specified in subsection (4) of that section —
(i) complied with the requirements of the notice; or
(ii)satisfied the Court that he or she has a cross claim against the creditor
(this subsection also being satisfied).
[38] By s 36 of the Act, on which this application proceeds, this Court may at its discretion adjudicate a debtor bankrupt if a creditor has established the requirements set out in s 13.
[39] Mr McNab, in essence, seeks to rely on s 37 if he fails on his procedural and jurisdictional arguments. Section 37 provides relevantly:
The Court may, at its discretion, refuse to adjudicate the debtor bankrupt if—
...
(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.
[40] There is a presumption of insolvency operating against a debtor who fails to meet the requirements of a bankruptcy notice. Repeated judgments of this Court and
of appellate courts identify the evidential onus that lies on a debtor to establish his or her means to satisfy a debt when he or she has failed to meet the requirements of a bankruptcy notice: see Holdgate v Blocassa Ltd.4 Mr McNab’s means are the matter which would most trouble any Judge who came to deal with this matter when Mr McNab has continually failed to adduce admissible evidence. I am not oblivious to Mr McNab’s repeated protestations of his financial means. In this peculiar jurisdiction of insolvency, I have taken into account, notwithstanding Mr McNab’s deliberate failure to produce admissible evidence, the BNZ statement which he
provided to the Court on 7 August 2012. But as cases such as Blocassa indicate, it is not particularly helpful to a Court for a debtor to provide a mere glimpse into some aspect of his or her financial means in this jurisdiction when the presumption of insolvency operates against him or her.
[41] The Court’s jurisdiction in this area exists for the benefit of all creditors. This focus underscores the need for the Court to know exactly for instance who the debtor’s creditors are. In the course of discussion on the first day of this hearing when explaining the need for evidence on solvency, I emphasised to Mr McNab the need for the Court to have evidence of his total assets and liabilities. That is one aspect of solvency. The other aspect of solvency, as indicated by cases such as Blocassa, is the cash-flow test of solvency on which no evidence has been adduced. The presumption of insolvency accordingly continues to operate.
[42] The Court is naturally troubled when a litigant comes before it asserting means to pay but for his own reasons chooses not to give the Court the full picture. The Court does not want to unnecessarily have the Official Assignee tasked with investigating the position of a debtor and then, if the Assignee clears all debts, sending the debtor on an annulment process with further inconvenience and cost to all concerned. Regrettably, debtors from time to time adopt tactical positions which leave the Court with little room for discretion to be exercised in favour of the debtor. This is such a case.
[43] In short, Mr McNab has brought the situation on himself if the Official
Assignee’s enquiries subsequently identify a solvent position in Mr McNab’s affairs.
4 Holdgate v Blocassa Ltd [2007] NZCA 132.
I have had regard also to the just and equitable ground under s 37(c) of the Act, as Ms Cunninghame responsibly referred me to. She submitted, correctly for the reasons I have traversed, that this is not an appropriate case in justice or in equity to exercise a discretion in favour of the debtor.
[44] Further, in terms of s 37(d) of the Act, I saw no other reason why the adjudication order which I have made should not have been made.
[45] Even had any of the limbs of s 37 been established by Mr McNab, that would have still left the Court with a discretion in considering whether to refuse to adjudicate Mr McNab bankrupt. By reason of the collection of factors I have already identified, I would have declined to exercise such discretion in Mr McNab’s favour.
[46] Those are my reasons in relations to the orders I made at the commencement of this judgment.
Contempt
[47] I add this in relation to the potential issue of contempt which is the subject of reservation in the orders I have made.
[48] A minute which I issued in the presence of Ms Cunninghame and Mr McNab at the commencement of the resumed hearing today is attached as Appendix B to this judgment. For reasons which I find almost incomprehensible but consistent with his previous conduct in this proceeding, Mr McNab chose very deliberately to make a statement to the Court at the commencement of my giving judgment this afternoon. He told me of the intentions of himself and his “business partners” whom he did not identify by name. Rather than incorporate my brief note of what he said I incorporate into this judgment a transcript of what Mr McNab said:
My business partners and I have considered what happened at the hearing today and we are asking our solicitors to send copies of the exact same words to the partners of Anderson Lloyd because in the context it is a most reasonable response for me ... for us to make in order to protect our business.
[49] The reference to the “exact same words” was a reference to the statement
made to Ms Cunninghame as contained in Appendix B.
[50] I intend to reflect over coming days on the statement made by Mr McNab today in conjunction with the statements made to Ms Cunninghame on 4 September
2012. These are serious matters which require the Court’s careful reflection. I will then be issuing a minute as to what, if anything further, is to be done in relation to these matters.
Costs
[51] In the circumstances I do not direct Ms Cunninghame to consult with Mr McNab as to costs as I do not consider such would be a fruitful consultation. I direct that the creditors file written submissions (either joint or separate) as to costs within five working days, such submissions to be limited to five pages and within five working days after receipt of such submissions, Mr McNab is to file any submissions in response (also limited to five pages). I will then determine issues of costs on the
papers filed.
Associate Judge Osborne
Solicitors:
Anderson Lloyd - Private Bag 1959, DX YP80020, Dunedin
Copy to : Mr G W C McNab
APPENDIX A
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2012-412-000310
IN THE MATTER of the Insolvency Act 2006
AND
IN THE MATTER of the bankruptcy of GORDON WALLACE CAMERON McNAB
Judgment Debtor
EX PARTEOCEANA GOLD NEW ZEALAND LIMITED Judgment Creditor
Hearing: 4 September 2012 (part-heard) Appearances: A Cunninghame for the Judgment Creditor
Judgment Debtor on his own behalf
Minute: 4 September 2012
_
MINUTE OFASSOCIATE JUDGE OSBORNE
[1] I commenced the hearing of this proceeding which involves also cross- documents filed by Mr McNab following the List this morning.
[2] Ms Cunninghame, for the creditor, relying on the evidence as to the debtor’s failure to meet the bankruptcy notice which had been issued sought adjudication in bankruptcy. Mr McNab then presented submissions in opposition and referred to two documents which he has provided in the proceeding, the first filed on 16 July
2012 being entitled “appearance under protest of jurisdiction” and the second being a document described as “interlocutory application” filed on 7 August 2012. I interpolate that the second document, although entitled “interlocutory application” essentially invites the Court to treat the application as opposed because it seeks an
order that the Court refuse to adjudicate the debtor bankrupt which is of course the corollary of a successful opposition.
[3] In the course of Mr McNab’s submissions, it must have become apparent to him that, with the state of documentation which he relies upon, the Court might well proceed to adjudicate him bankrupt. Mr McNab wished to refer primarily to one document which is a statement of the balance of three accounts at a Bank. He was also, as I understand it after the luncheon adjournment, going to come on to refer to a document in the nature of a contract dated 27 June 1997. For reasons which I fully covered with Mr McNab in the course of submissions neither of those documents is before the Court in evidence. Also entirely missing from evidence, although the subject of some submissions made by Mr McNab, is any picture of Mr McNab’s overall financial position - that is to say any picture beyond the very limited nature of information contained in the Bank’s certificate. I have explained to Mr McNab in the course of argument and subsequent discussion about an adjournment that it is not for the Court to advise Mr McNab of what evidence he needs to present.
[4] On his own evidence, he is well and truly able to obtain advice on such matters and in any event as a self-represented litigant it is again for him to inform himself as to the rules and the needs of litigation.
[5] On the last occasion when this proceeding was called and when it was set down for hearing today, Judge Matthews made an oral direction which was to this effect:
Application is adjourned to 4 September 2012. Affidavit to be filed from officer of the BNZ advising immediately the availability of funds exceeding the judgment debts.
[6] Mr McNab has a different view of the Judge’s intention with regard to that minute but on any view of it the Court was essentially assisting Mr McNab in the direction of having, if he wished to have it, proper evidence before the Court as to what the Bank’s certificate stated. Beyond that it was entirely a matter for Mr McNab to decide what evidence he needed in opposition. The High Court Rules
provide very clearly, r 24.18 that any evidence in opposition is to be filed by 1.00 pm on the last working day before a hearing. In this case no evidence was filed.
[7] After a luncheon adjournment, Mr McNab has requested an adjournment of the hearing to a later day. Ms Cunninghame understandably indicated opposition to that course but responsibly accepted that if an adjournment were granted, then it should be on terms as to costs and also as to the time for any evidence to be filed.
[8] I am satisfied, having regard to the importance of this jurisdiction (the bankruptcy jurisdiction) that justice requires a brief adjournment for Mr McNab. He indicated in his application for adjournment that the Bank of New Zealand had agreed to provide evidence if it was clearly indicated what was required.
[9] The Minute I have now dictated records exactly what Associate Judge Matthews directed. There is no need for me to amend that direction. The order which I make shortly will simply enlarge the time for compliance with that direction. It is then a matter for Mr McNab as to what other evidence he needs if his opposition is to have a prospect of success.
[10] I am satisfied that in granting an adjournment there have been wasted costs today, and Mr McNab did not suggest otherwise. I indicated to Mr McNab in the course of discussion that normally an order of half a day’s wasted costs might apply to the situation of today, but that I was minded to direct a payment of costs based on a one quarter day, having regard to the 2B scale (being $497.50). Mr McNab did not submit that that would be inappropriate.
[11] Against that background I make the following orders:
The proceeding is adjourned for resumption at 10.00 am next Tuesday
11 September 2012.
Mr McNab is to pay, in any event, the wasted costs of today’s
appearance on the basis of a one quarter day that is $497.50. Such
payment to be made in any event and no later than 4.00 pm Monday
10 September 2012.
The time for compliance with the Bank of New Zealand affidavit requirement in the Court’s order of 7 August 2012 is enlarged to 4.00 pm this Friday 7 September 2012.
Any other evidence which Mr McNab intends to rely on at the hearing is to be the subject of an application for extension of time for the filing of such documents, to be filed no later than 4.00 pm,
7 September 2012, such application to have attached to it the completed affidavit or affidavits which Mr McNab seeks to rely on in addition to the Bank of New Zealand affidavit.
The creditor, in the event that it has any evidence that it needs to file in reply to the evidence filed by Mr McNab this week, has leave to file and serve such evidence up to 4.00 pm on Monday 10 September
2012.
APPENDIX B
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2012-412-000310
IN THE MATTER of the Insolvency Act 2006
AND
IN THE MATTER of the bankruptcy of GORDON WALLACE CAMERON McNAB
Judgment Debtor
EX PARTEOCEANA GOLD NEW ZEALAND LIMITED Judgment Creditor
Hearing: 11 September 2012
Appearances: A Cunninghame for the Judgment Creditor
Judgment Debtor on his own behalf
Minute: 11 September 2012
MINUTE OFASSOCIATE JUDGE OSBORNE
[12] There is a preliminary matter that I need to deal with and it is this - and these remarks are addressed to you, Mr McNab.
[13] When I left Court on the afternoon of the previously adjourned hearing, 4
September 2012, on the first adjournment that I took that afternoon, after lunch, this exchange took place:
MR McNAB: Disparage my credit in any way and you won’t have a house to live
in, or a property to carry on in, and you certainly won’t be practising.
MS CUNNINGHAME: Mr McNab, don’t make threats like that, please.
MR McNAB: A timely warning, I think.
[14] The Court takes extremely seriously the safety of all who appear in the context of a proceeding, be they witnesses, counsel, Court staff or judiciary.
[15] The importance of that is crucial to the administration of justice in the interests of all parties who appear in litigation. The law of contempt exists for that purpose. It goes without saying that the Court takes with the utmost seriousness any incident of the kind that has been recorded by the Court reporter.
[16] The Court’s understanding is that either Ms Cunninghame or the firm of Anderson Lloyd may deal separately with this issue through their right of complaint to the Police. For now, this Court intends to reserve its position in relation to the conduct which occurred in the course of this earlier adjourned hearing. Accordingly, regardless of other decisions or judgments to which the Court comes today, the Court’s position in relation to this matter simply stands reserved and submissions will be called for from either Mr McNab or Ms Cunninghame only if and when the Court chooses to deal with the matter again.
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