Page v Official Assignee
[2016] NZHC 1988
•24 August 2016
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 AssigneeJudgment:
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) to (c), —
(a) the court may, on the Assignee’s application, fix an amount as reasonable remuneration for the Assignee’s services and
18 August 2010.
order that it be paid, in addition to any costs that may be awarded:
…
[4] Mr Page’s application is opposed by the Council.
Mr Page’s annulment applications
[5] This is the fourth application Mr Page has made for an order for annulment. The first two applications were dismissed by Associate Judge Gendall in judgments respectively given on 21 July 20113 and 11 October 2012.4 The third application was heard by Collins J on 31 July 2013.5 With his third application, Mr Page also asked this Court to reverse a decision the Official Assignee had made admitting as a proven
debt in Mr Page’s bankruptcy a costs judgment of $12,000.00 which had been made in favour of the Council in the Environment Court on 11 March 2010 (the costs judgment). The costs judgment formed the basis for the adjudication order made on
24 February 2011.
[6] Collins J found it unnecessary to deal with Mr Page’s annulment application: his Honour considered that if Mr Page did not succeed in overturning the Official Assignee’s decision to admit the costs judgment as a proven debt in Mr Page’s bankruptcy, there could be no basis for any annulment order.6 Collins J found that there was no ground on which the Official Assignee’s decision to admit the Council’s proof for the costs judgment could be reversed. Mr Page’s applications were accordingly dismissed.
[7] Mr Page’s present annulment application (the application) was filed on
1 March 2016.
[8] Mr Page sets out the following grounds in the application:
1 Under s309(1)(a) of the Insolvency Act, new evidence from both the Wellington Department of Corrections … and the Auckland Environment Court … has confirmed that the jurisdiction of appeal for
3 Whanganui District Council v Page HC Whanganui CIV-2010-483-134, 21 July 2010.
4 Page v Whanganui District Council [2012] NZHC 2622.
5 Page v Whanganui District Council [2013] NZHC 1942.
6 At [3].
Environment Court matters (bankruptcy debt) lies with the High Court, NOT with the Environment Court on decisions it has made.
2 As a consequence of the abovementioned jurisdiction, the bankruptcy debt itself has never been challenged. Both Mr Page and Ms Wilson have been deprived of the right to challenge the debt (itself) in the High Court in Wellington and as a consequence should never have been made bankrupt without having this fundamental right available to them.
3 The bankruptcy debt of $12,000, as awarded costs on application [ENV-
2009-WLG-00002] has, on multiple occasions been turned down as matters of appeal in the Environment Court. Mr Page found out recently
matters of appeal in the Environment Court should have been made in
the Wellington High Court to determine as the wrong jurisdiction was acted on thereby depriving both respondents the correct jurisdiction in
order to challenge the debt (itself).
4 The Official Assignee has mishandled the disposal of assets from the Waikupa Trust, some of which were originally assets of Earth Design Contracting Limited that were guaranteed by Waikupa Trust. …
5 The section at 86 Ikitara Road, Whanganui [which I will refer to in this judgment as “the property”] was transferred to Mr Page without any payment made as terms of the agreement for $36,000 on the transfer of the property from Waikupa Trust. As such Waikupa Trust was owed
$36,000 from Mr Page. Waikupa Trust then arranged funds of $37,044 to be advanced to the Official Assignee on the promise that the Official Assignee would not sell the property. This promise was made by the Official Assignee.
6 The Official Assignee then went back on its word and sold the property in such a manner that it was impossible to prevent its sale (after the bankruptcy had ended).
7 Items sold by the Official Assignee include:
· Section at 86 Ikitara Road;
· Isuzu truck (ENK231);
· Yanmar digger and auger unit;
· Carry dump; and
· IHI 6.5 ton digger (McLean); all property of the Waikupa Trust.
…
8 The entire process is so flawed it has been impossible for Mr Page to challenge with jurisdiction and changes in ownership due to the Official Assignee’s forced winding up of the company (Earth Design Contracting Limited) which was not bankrupt itself.
9 The underhanded approach by the Official Assignee shows a level of corruption outside the jurisdiction of New Zealand law in order to
extract money with no regard to establishing the true ownership of the property.
The Official Assignee’s report
[9] The Official Assignee’s report dated 8 April 2016 on the application advised that Mr Page was discharged from bankruptcy on 12 April 2014.
[10] The Assignee confirmed that Mr Page would not meet the requirements for annulment under s 309(1)(b) of the Act, which applies where a bankrupt’s debts have been fully paid or satisfied and the Assignee’s fees and costs have been paid. At the hearing, Mr Page confirmed that he has not paid all his creditors – his application is made only under s 309(1)(a) of the Act.
The Council’s opposition
[11] The Council filed a short memorandum in opposition to the application, on
30 May 2016. It contends that, while the application is framed under s 309(1)(a) of the Act, the intention of the application is in fact to appeal the original bankruptcy decision of the Court. The Council further says that Mr Page’s application was not supported with any cogent document or affidavit.
Background
[12] The costs judgment, on which Mr Page’s bankruptcy was based, followed the making of interim and final enforcement orders in the Environment Court, on
13 January 2009 and 29 May 2009. The enforcement orders were made on the Council’s application, based on its concerns over the removal of vegetation, the development of land, and stormwater relocation work that Mr Page had been carrying out on the property. The Council sought costs on the applications totalling
$35,154.18 (approximately $24,000.00 of which was engineering fees). After hearing from the parties, the Environment Court entered the costs judgment on
11 March 2010.7
7 Whanganui District Council v Page and Wilson [2010] NZEnvC 73.
[13] For over seven years, Mr Page has refused to accept the validity of the costs judgment. He told me at the hearing that, including his bankruptcy annulment applications filed in this Court, he has made no fewer than thirteen applications to various courts, including the Environment Court, this Court, and the District Court (in which a related criminal proceeding was commenced against Mr Page), all designed to have the costs judgment overturned. In fact it appears that he has made as many as sixteen or seventeen applications. None of the courts in which he has sought to challenge the costs judgment have been prepared to reopen the costs issue.
[14] Mr Page says that on a number of occasions he has been told that a particular court in which he has endeavoured to pursue his challenge does not have the jurisdiction to set aside the costs judgment.
The Parties’ submissions
Mr Page
[15] Mr Page filed a written memorandum for the hearing. In it he makes the following submissions.
[16] First, he submits that the Council had failed to ensure that the property complied with a “rateable and non-adverse standard” prior to taking legal action against him and Ms Wilson. In 1965 the Council approved a subdivision, which created the property. One of the conditions of approval was that the subdivider was to provide practical access to the street carriageway. Mr Page contends that certain driveway changes made in 1970 had the effect that that condition has not been complied with. He complains that a six metre strip of Council-owned road reserve separates the property from Ikitara Road, which is inaccessible for the property and has stormwater discharging over the footpath, causing adverse effects to the environment. He submits that the Council effectively made the property “uncompliant/unrateable”, and that any legal action subsequently taken by the Council against Ms Wilson and himself was therefore invalid.
[17] Secondly, Mr Page challenges the judgments made by the Courts on his various applications, saying that the Courts were not “of competent jurisdiction pre, during or post bankruptcy”.
[18] In support, he says that the costs judgment was obtained on the basis of false or invalid invoices produced by the Council, and that substantial evidence produced by the Council in the enforcement order proceedings was obtained through the execution of an invalid search warrant. He contends that a search warrant issued for the related criminal proceeding should not have been allowed to be used to provide evidence in the (civil) enforcement order proceedings in the Environment Court. 8
[19] A component of the Council’s costs claim in the Environment Court was an amount of $1,125.00 for advice provided by the Council’s solicitors on the (successful) application by the Council for a warrant to search the property. Mr Page submits that this part of the costs claim was included improperly, as the search warrant was only available under s 334 of the Resource Management Act 1991 (the RMA) in relation to prosecution for an offence against the RMA. Mr Page also expresses concern over the Opus account for $24,004.18 which formed part of the Council’s costs claim. The Opus tax invoice referred only to Mr Page (and not Ms Wilson), and it related to work carried out by Opus as a result of the allegedly
invalid search warrant.
8 In his application for the search warrant, Mr McGhie of the Council stated that the application for the final enforcement order had been filed in the Environment Court on 7 April 2009. The Environment Court had issued an interim enforcement order on 13 January 2009, and Mr McGhie had served a copy of the interim order on Mr Page later that day. The Council had sought and obtained an extension of the interim enforcement order, on 8 April 2009. The interim order was extended to 30 June 2009. Mr McGhie stated that counsel for Mr Page had been provided with a copy of the extension order, on Wednesday 8 April 2009, and that he served Mr Page with the Council’s application for an extension and the decision of the Court extending the order, on 9 April 2009. Mr McGhie said that the Environment Court was (at the date of the search warrant application, 24 April 2009) in the process of providing an urgent fixture date for a hearing of a final enforcement order. The application for the search order was made under s 334 of the Resource Management Act 1991 (the RMA), on the grounds that there was reason to believe that an offence had been committed against s 338(1)(b) of the RMA. The application asked the Court to authorise Mr McGhie and various other people, including the Council’s appointed engineer and any accompanying constable, to enter the property and measure, photograph and undertake a geological survey of the property and search for or seize anything which was or might be evidence that there had been an offence committed against the RMA or Regulations. The search warrant was issued on 24 April 2009, substantially in accordance with the Council’s application.
[20] Mr Page produced a copy of what appears to be a briefing paper prepared by the Council for Opus, in which the Council noted that the detailed geotechnical engineering report which it required “may be used as evidence in both the Environment Court and the District Court…”.
[21] Mr Page says that he has been unsuccessful in his various attempts to have the allegedly invalid search warrant set aside.
[22] Next, Mr Page says that he and Ms Wilson did not receive proper notice of the application for the enforcement order under ss 316 and 317 of the RMA.9 He says that, although the Council advised Opus in its brief that it expected the court hearing would be in early May 2009, no application under s 316 of the RMA was provided to either the Environment Court or to Mr Page and Ms Wilson.
[23] Mr Page submits that both he and Ms Wilson have been deprived of their rights of appeal, in both the criminal and civil courts. He submits that the invalidity of the procedures adopted in the Environment Court, which resulted in the costs judgment, were acknowledged in a judgment of the Environment Court given by Judge Newhook on 1 September 2015.
The Council’s submissions
[24] Mr Drake submits that the points raised by Mr Page are not new, and are not supported by any new evidence. He says they have been considered by the Court on previous occasions.
[25] Mr Drake referred to Mr Page’s three previous annulment applications. In the first application, dated 14 March 2011, Mr Page’s principal argument was that the Court had failed at the bankruptcy adjudication stage to ask Mr Page and
Ms Wilson if they were able to satisfy the debt. Mr Page did not then challenge the
9 Section 316 of the RMA provides that any person, including a local authority or consent authority, may at any time apply to the Environment Court for an enforcement order. Under s 317, the applicant is required to serve the application on every person directly affected by the application, except where s 320, which relates to interim enforcement orders, applies. Under s 320(2), if an Environment Court Judge considers it necessary to do so, the Judge may make an interim enforcement order without requiring service of notice in accordance with s 317, and without holding a hearing.
validity of the costs judgment. Mr Drake submits that by implication Mr Page acknowledged that the costs judgment was valid.
[26] In his second annulment application Mr Page did contend that the costs judgment was invalid. On that occasion, he contended that the Court had wrongly identified him and Ms Wilson as the owners of the property, and that the procedure under the RMA for the issue of abatement notices had not been properly followed.
[27] Mr Drake referred to the following statement from Associate Judge Gendall in giving judgment on the second annulment application: 10
It is clear to me that this objection amounts to a challenge to the Environment Court’s decision which this Court cannot review in its hearing of a second application for bankruptcy annulment. Significantly, Mr Page has not appealed the orders made by the Environment Court. Certainly, an appeal would have provided the appropriate forum to challenge and review the merits of those orders. The matters submitted by Mr Page in the present application were before the Court when the original adjudication order was made, and I am satisfied no material facts were omitted that might justify an annulment on the basis of new evidence. For that reason alone I am of the view that the very narrow discretion prescribed by s 309(1)(a) of the Act should not be exercised here.
[28] In his third annulment application Mr Page again argued that, as the property was owned by the Waikupa Trust (and not Ms Wilson and himself in their personal capacities), the Council obtained the costs judgment either by fraud or through negligence. Mr Drake submits that those arguments were dismissed by Collins J, who regarded them as, in effect, an attempt to appeal against the relevant Environment Court decisions.
[29] Mr Drake submits that Mr Page’s right to appeal the bankruptcy debt has been in existence since the adjudication order was made, and that the Court informed Mr Page of that right in 2013. He submits that there is no substance in Mr Page’s claim that he has been deprived of the right to appeal.
[30] Mr Drake then submits that, while it is not a matter the Court should enquire into on this application, Mr Page has produced no evidence to validate his claim that
the Council provided false or invalid invoices to the Environment Court.
10 Page v Whanganui District Council [2012] NZHC 2622 at [16].
[31] On Mr Page’s point about alleged failure to comply with the notice requirements of s 317 of the RMA, Mr Drake submits that Mr Page has already argued the point unsuccessfully in the Environment Court, and Mr Page did not appeal the decision in which his argument was rejected. In support, Mr Drake refers to two decisions given by Judge Thompson in the Environment Court: an interim
decision given on 28 August 2014,11 and a final decision given on
26 September 2014.12 Mr Page had applied on 9 July 2014 for what he described as a “declaration” pursuant to ss 311 and 312 of the RMA. Judge Thompson said in his interim decision that he found the application incomprehensible, but considered it best to set the matter down for hearing so that he could hear from Mr Page on it. At the hearing, Mr Page made submissions about the way in which applications for interim enforcement orders and final enforcement orders (ss 314 to 320 of the RMA) should be made and served. The Judge recorded Mr Page’s submission that the procedures had not been followed in his case.
[32] Judge Thompson stated in his interim judgment that he could see no reasonable basis on which Mr Page’s argument could succeed. He referred to the enforcement order judgment, which followed a hearing on 19 May 2009, and stated his view that it was perfectly apparent that there was no suggestion that Mr Page had been under any misunderstanding of what the Court was dealing with at that hearing. Judge Thompson also noted that there had never previously been any suggestion from Mr Page that he was under the slightest misapprehension of what it was that the Court was dealing with in the May 2009 hearing. Judge Thompson noted that, by the time of the May 2009 hearing, the interim enforcement order had been in existence for some time, and it “cannot be that Mr Page thought that it was they
which were being discussed at the hearing.”13
[33] Judge Thompson also noted in his interim judgment that, following the making of the final enforcement order on 29 May 2009, Mr Page and Ms Wilson
made submissions on what the terms of the final enforcement order should be.
11 Page v Whanganui District Council [2014] NZEnvC 184.
12 Page v Whanganui District Council [2014] NZEnvC 206.
13 Page v Whanganui District Council Above n 12, at [11].
Again, there was no suggestion that they were under the slightest misapprehension about what was being dealt with.
[34] In his interim judgment, Judge Thompson refrained from making any formal order on Mr Page’s application for a declaration. He indicated his tentative view that there was no basis on which the declaration could reasonably be made, and that it might be appropriate for the Court to strike out the application on the basis that it could not succeed. However he allowed Mr Page until 12 September 2014 to lodge any further submissions. Counsel for the Council was permitted to file submissions in response.
[35] Having received and considered the further submissions, Judge Thompson gave a brief final judgment on 26 September 2014.14 He was unpersuaded by Mr Page’s further submissions, and concluded that Mr Page had not made out any grounds that would support the making of a declaration. Mr Page’s application was formally declined.
[36] Mr Drake notes that, after the enforcement order was made, Mr Page and Ms Wilson did obtain legal representation. On 10 July 2009 their counsel filed an application to change the enforcement order, on the basis that Mr Page was having difficulty meeting the timeline included in the order. And on 24 July 2009, counsel for Mr Page and Ms Wilson filed an extensive submission in response to the Council’s application for costs. Mr Drake submits that it is significant that no application to set aside the enforcement order or the costs order was made at that time; nor was there any appeal against the Environment Court decisions.
[37] Generally on the application of s309(1)(a) of the Act, Mr Drake submits that the section does not provide grounds for interfering with a discretion exercised on a properly brought adjudication application, unless it is established that there was some defect in procedure or abuse of process, or an omission of some material fact before the Court making the adjudication order. He submits that Mr Page is simply seeking to re-litigate the merits of the enforcement order, rather than the adjudication
application brought by the Council. The various points raised by Mr Page do not
14 Page v Whanganui District Council, above n 13.
amount to a defect in procedure, abuse of process, or relevant omission, and
Mr Page’s application should be dismissed accordingly.
Discussion and conclusions
[38] Mr Page has filed no fewer than four applications to annul his bankruptcy under s 309(1)(a), notwithstanding that he did not appeal either the judgment in which the application by him and Ms Wilson to set aside the Council’s bankruptcy notice was dismissed, or the judgment in which the adjudication order itself was made.
[39] In Creser v Creser I held that a bankrupt (or former bankrupt) should not be permitted to make serial applications for annulment of the original adjudication order.15 I referred to the principle of finality, in noting that it is appropriate in bankruptcy law that issues should be concluded once and for all, in the interests of commercial certainty and finality.16 Secondly, I referred to the broader litigation principle that a party should put before the Court all matters of which he or she is aware, which go to the issue to be determined, at the one hearing.17
[40] It may be that the position would be different if Mr Page had, after an unsuccessful annulment application, discovered some important new fact which (had it been known at the time) would clearly have resulted in the adjudication application being refused. But there is nothing of that sort here. At the hearing, Mr Page was unable to point to any new fact, which he had learned since his last annulment application was refused, which might have suggested that the adjudication order should not have been made.
[41] While there is a wide discretion given to the Court under s 309(1)(a), the courts have held that the section should be interpreted narrowly, and that the courts
should exercise their power to annul under the subsection sparingly.18 Generally, an
15 Creser v Creser [2014] NZHC 3267 at [45].
16 Referring to Insolvency Law and Practice (online loosely ed, Brookers) at [IN37.01(1)(a)] citing
Re Guest, ex parte BNZ Finance Ltd [1991] 1 NZLR 250 (HC) at 255.
17 At [45] and [46], citing Greenhalgh v Mallard [1947] 2 ALL ER 255 (CA) at 257, and
Rafiq v Secretary, Department of Internal Affairs of New Zealand [2014] NZHC 2064 at [21].
18 Re Hunter ex parte Commissioner of Inland Revenue (2000) 19 NZTC 15,722, and Minter
Ellison Rudd Watts v Hampton [2013] NZHC 2434.
annulment under s 309(1)(a) will not be granted unless there was some defect in procedure, abuse of process, or where subsequent evidence shows that not all the true facts were before the Court making the adjudication order (and that the new facts would have affected the outcome).19
[42] The need under s 309(1)(a) is to show some defect in the bankruptcy adjudication proceeding, and Mr Page has failed to point to any such defect. Courts dealing with bankruptcy adjudication applications do not sit as appeal courts from the judgments on which bankruptcy applications are based – if there is some challenge to the judgment on which the judgment creditor relies in seeking an adjudication order, that challenge should be made either by appealing the judgment relied upon or, in an appropriate case, applying to the court in which the judgment was given to set that judgment aside.
[43] In this case, Associate Judge Matthews made that point clearly in a minute dated 16 November 2015. His Honour said:
To assist Mr Page, I note that at least at present, there is no indication that the judgment of the Environment Court on which the original adjudication was based has ever been challenged by way of an appeal to the High Court. Any such appeal would now be years out of date. On an application to set aside a bankruptcy which was based on an existing and unchallenged order of a court, this Court is most unlikely to go behind that judgment, because at the time of the adjudication this Court accepts the formal records of judgments issued by other courts.
[44] And in his judgment given on 11 October 2012 on Mr Page’s second annulment application, Associate Judge Gendall said that, as he saw it, Mr Page was “essentially asking this Court to reopen the merits of the substantive Environment Court case which set in train the bankruptcy proceedings”.20
Associate Judge Gendall stated that “it is clear to me that [Mr Page’s objection]
amounts to a challenge to the Environment Court’s decision which this Court cannot review in its hearing of a second application for bankruptcy annulment.
Significantly, Mr Page has not appealed the orders made by the Environment Court.
19 Re Hunter ex parte Commissioner of Inland Revenue, above n 18, and Holdgate v Blocassa Ltd
[2007] NZCA 132.
20 Page v Whanganui District Council [2012] NZHC 2622 at [7].
Certainly, an appeal would have provided the appropriate forum to challenge and review the merits of those orders”.21
[45] I agree, and note that Mr Page has apparently still not filed any appeal to this Court against the costs judgment (or the earlier judgments in which interim and final enforcement orders were made).
[46] It is not as if Mr Page has not been informed of the avenues which might have been available to him to challenge the validity of the costs judgment. In his decision given on 2 August 2013, Collins J noted that: 22
Mr Page could have taken a number of steps to challenge the validity of the costs judgment. Those steps could have included applying to the Environment Court to set aside its decision or possibly appealing the Environment Court’s decision on the grounds that it contained an error of law.
[47] A party’s right to apply to the Environment Court to set aside that court’s decision is contained in s 294 of the RMA. The right to appeal to this Court against an Environment Court decision, on the basis of error of law only, is contained in s 299 of the RMA.
[48] It is not entirely clear whether Mr Page may have already made one or more unsuccessful applications to the Environment Court to review the relevant decisions under s 294. The judgments of Judge Thompson, discussed at paras [31] – [34] above, may have been treated by the Judge as a review hearing (although Mr Page had described his application as an application for a declaration under ss 311 and 312 of the RMA). And then there is the judgment of Principal Environment Court Judge Newhook dated 1 September 2015, to which Mr Page referred in his submissions. Judge Newhook referred to a decision given by Judge Dwyer in the Environment Court in June 2014, which was later appealed to this Court. Mr Page had applied to cancel both the interim enforcement order and the final enforcement order. His applications were refused by Judge Dwyer, and his appeal was dismissed
by Kós J in a decision given in December 2014.
21 At [16].
22 Page v Whanganui District Council, above n 5, at [8].
[49] In his judgment of 1 September 2015, Judge Newhook considered that some of the matters which had already been dealt with in the High Court underpinned Mr Page’s application for a re-hearing and “invalidation” of the enforcement orders.23 He noted that the “new” grounds raised by Mr Page consisted of an allegation that the Council and the Environment Court had failed to produce to Mr Page copies of the original notification of application for enforcement orders, an
affidavit in support, proof of service of them on Mr Page and Ms Wilson in April
2009, and notification from the Environment Court to Mr Page and Ms Wilson of the fixture scheduled for 19 May 2009 (at which Mr Page was present, and did make submissions). Having regard to the decisions of the courts, including one in the High Court and one in the Court of Appeal,24 as to the train of events on the property, and in process terms, Judge Newhook considered that there was no basis on which the Environment Court could embark on a reconsideration of the enforcement orders. Mr Page’s application for reconsideration of the enforcement orders was accordingly dismissed.
[50] At the hearing of the application, Mr Page appeared to be under the impression that Judge Newhook’s decision somehow confirmed that there had been procedural irregularities that would have justified the setting aside of the enforcement orders and the costs judgment. I can find no support for that view in the judgment. Judge Newhook did cancel the interim and substantive enforcement orders made in 2009, but that was not done because of any perceived irregularity in the making of the orders, but because the Council had applied for cancellation of the enforcement orders following the sale of the property by the Official Assignee, and that application was considered “eminently sensible”: there was no continuing need for the enforcement orders.
[51] So it appears likely that Mr Page has already unsuccessfully sought a review of the Environment Court decisions by that Court. If that is right it seems improbable that any further review application in that Court would be entertained.
But that is not something I need to decide on the application; the only relevant point
23 Page v Whanganui District Council [2015] NZEnvC 153.
24 Page v Whanganui District Council [2012] NZCA 324, in which Mr Page’s appeal against
conviction was dismissed.
here is that the costs judgment remains in full force and effect and has not been satisfied.
[52] For completeness, I will refer briefly to the submissions made by Mr Page on other matters. First, I accept Mr Drake’s submission that there appears to be nothing new in Mr Page’s submissions relating to notification of the enforcement order proceedings and the alleged invalidity of the search warrant. The procedures adopted under ss 314 – 320 of the RMA appear to have been canvassed before Judge Thompson and Judge Newhook, and I note that the alleged invalidity of the
search warrant was raised by Mr Page at least as early as 14 March 2011.25
[53] Mr Page has produced no evidence that the invoices presented to the Environment Court were somehow false or invalid, and in any event the costs judgment was for an amount which was only slightly more than one third of the amount the Council had claimed. Any complaints Mr Page might have about aspects of the Council’s approval of the subdivision, could not affect the validity of the costs judgment.
[54] Finally, the Court is not concerned on an annulment application under s 309(1)(a) with the Official Assignee’s actions following the adjudication. The question under s 309(1)(a) is whether the adjudication order should have been made: the Court is not concerned with events which may have occurred after it was made. That point effectively deals with grounds 4-9 in Mr Page’s annulment application.
[55] In summary:
(a) The Court hearing an annulment application under s 309(1)(a) 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 or her to have that judgment overturned by
review or appeal, if grounds exist to do so.
25 See for example Mr Page’s Application for Annulment of Bankruptcy dated 14 March 2011,
para 3.
(b)The Court will not entertain serial applications under s 309(1)(a), at least in the absence of new evidence (which could not with reasonable diligence have been produced earlier) which is sufficient to support a finding that the adjudication order should not have been made. There has been nothing of that kind produced by Mr Page in this case, and the opposing party in that circumstance is entitled to finality.
(c) 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 to the Court of Appeal against the adjudication order.
[56] For all of the foregoing reasons I am satisfied that there is no basis for an annulment order under s 309(1)(a) of the Act. The application is accordingly dismissed.
[57] As the successful party, the Council would normally be entitled to costs on a
2B basis, with disbursements as fixed by the Registrar. However I did not hear from the parties on the issue of costs at the hearing. If the parties are unable to agree, the Council may file a memorandum seeking an order for costs, within fifteen working days of the date of this judgment. Mr Page may file a memorandum in reply within fifteen working days of his receipt of any costs memorandum from the Council.
Associate Judge Smith
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