Page v Official Assignee - [2016] NZHC 1988

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2010-483-134 [2016] NZHC 1988

IN THE MATTER
of section 309(1)(a) of the Insolvency Act

2006

AND

of the bankruptcy of Adrian Neil Page

BETWEEN

ADRIAN PAGE Applicant

AND

OFFICIAL ASSIGNEE First respondent

WHANGANUI DISTRICT COUNCIL Second respondent

Hearing: 12 August 2016

Appearances:

A M Page in person
P Drake for the respondent
No apperarance fot the Official Assignee

Judgment:

24 August 2016

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] Mr Page was adjudicated bankrupt on the application of the Whanganui District Council (the Council) on 24 February 2011. The order for adjudication1, made by Associate Judge Gendall, followed a defended hearing. There had earlier been a defended hearing when Mr Page and his then partner Ms Wilson applied to set aside bankruptcy notices served on them by the Council (the application to set aside the bankruptcy notices was dismissed by Associate Judge Gendall in a reserved
judgment given on 18 August 20102).

1 Whanganui District Council v Page HC Whanganui, CIV-2010-483-134, 24 February 2011.
2 Page and Wilson v Whanganui District Council HC Wellington, CRI-20140-483-134,

PAGE v OFFICIAL ASSIGNEE [2016] NZHC 1988 [24 August 2016]

[2] Mr Page now applies for an order under s 309(1)(a) of the

Insolvency Act 2006 (the Act) annulling the order for adjudication made against him.

[3] Section 309 of the Act relevantly provides:

Subpart 2—Annulment

Court may annul adjudication

(1) The court may, on the application of the Assignee or any person interested, annul the adjudication if—

(a) the court considers that the bankrupt should not have been adjudicated bankrupt; or

(b) the court is satisfied that the bankrupt’s debts have been fully paid or satisfied and that the Assignee’s fees and costs incurred in the bankruptcy have been paid; or

…

(2) In the case of an application on one of the grounds specified in subsection (1) (a) to (c) by an applicant who is not the Assignee,—

(a) a copy of the application must be served on the Assignee in the manner and within the time that the court directs; and

(b) the Assignee may appear on the hearing of the application as if the Assignee were a party to the proceeding.

(3) The adjudication is annulled—

(a) from the date of adjudication, in the case of an application on the ground specified in subsection (1)(a):

(b) from the date of the court’s order of annulment, in the case of an application on one of the grounds specified in subsection (1) (b) to (d).

(4) In the case of an application for annulment on the ground that the adjudication should not have been made because of a defect in form or procedure, the court may, in addition to annulling the adjudication, exercise its powers under section 418 to correct the defect and order that the application for adjudication be reheard as if no adjudication had been made.

(5) If the court annuls the adjudication on one of the grounds specified in subsection (1) (a)…

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 Page v Official Assignee

Details

AGLC: Page v Official Assignee [2016] NZHC 1988
Case: [2016] NZHC 1988
Decision Date: 24 August 2016

CaseChat Overview and Summary

Adrian Neil Page was adjudicated bankrupt on 24 February 2011. He applies for an order under s 309(1)(a) of the Insolvency Act 2006 annulling the adjudication order. This is his fourth such application. The Whanganui District Council opposes the application. The Official Assignee did not appear. The Court heard the application on 12 August 2016. The Court dismissed the application.

The Court held that there was no basis for an annulment order. The Court will not normally enquire into the merits of the judgment on which the adjudication order was made. It is for the debtor to take such steps as may be available to him to have that judgment overturned by review or appeal, if grounds exist to do so. The Court will not entertain serial applications under s 309(1)(a) in the absence of new evidence which could not with reasonable diligence have been produced earlier. There has been nothing of that kind produced by Mr Page in this case, and the opposing party is entitled to finality. Even without those difficulties, Mr Page has not pointed to any defect in procedure, or abuse of process, in the bankruptcy adjudication proceeding. Nor did he avail himself of his right to appeal against the adjudication order.

The Court invited the parties to agree on costs. If they were unable to agree, the successful party was to file a memorandum seeking an order for costs, within 15 working days of the date of the judgment. The other party could file a memorandum in reply within 15 working days of receipt of the memorandum.

Orders