Page v Official Assignee

[2013] NZHC 1942

IN BANKRUPTCY

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2013-485-000080 [2013] NZHC 1942

IN THE MATTER             of the Insolvency Act 2006

IN THE MATTER             of the bankruptcy of ADRIAN NEIL PAGE

BETWEEN  ADRIAN NEIL PAGE Applicant

WHANGANUI DISTRICT COUNCIL First Respondent

ANDTHE OFFICIAL ASSIGNEE Second Respondent

Hearing:                   31 July 2013 (at Wellington) Counsel:  Applicant in person

No appearance for First Respondent

G E Slevin for Second Respondent (via videolink) Judgment:  2 August 2013

JUDGMENT OF COLLINS J

Introduction

[1]      Mr Page was adjudged bankrupt on 11 March 2011.  He has now: (1) applied to annul his bankruptcy;[1]   and

[1] Insolvency Act 2006, s 309(1)(a).

(2)       applied to have the High Court reverse the Assignee’s decision to

admit as a proven debt a costs judgment of $12,000 made by the

Environment Court on 11 March 2010.[2]

PAGE v THE OFFICIAL ASSIGNEE [2013] NZHC 1942 [2 August 2013]

[2] Section 226.

[2]      This is the third occasion Mr Page has applied to annul his bankruptcy.  He has on previous occasions submitted that the $12,000 costs judgment made by the Environment Court is not a legitimate debt.

[3]      This  judgment  deals  only  with  the  application  to  reverse  the Assignee’s decision to admit the costs award as a proven debt of the estate because, if Mr Page does not succeed in relation to his argument about the Environment Court’s costs judgment there is no basis for him to argue that his bankruptcy should be annulled.

[4]      The costs award was made in favour of the Whanganui District Council (the Council) against Mr Page and Ms Wilson.  The costs award related to interim and final enforcement orders made on 13 January 2009 and 19 May 2009 in relation to the removal of vegetation, the development of land and storm water relocation work that  was  being  carried  out  at  a  property  at  86  Ikitara  Road,  Whanganui  (the property).  The Council sought costs of $35,154.18 of which $24,004.18 related to engineering fees.

[5]      Mr Page submits that the property was owned by the Waikupa Trust and not himself and Ms Wilson in their personal capacities (he accepts he, Ms Wilson and Mr Shaw were trustees of the Waikupa Trust).  From this Mr Page argues that the Council obtained judgment against him either by fraud or through negligence.

[6]      The narrow issue I have to determine is whether or not the Assignee erred when the Assignee decided the costs judgment was a proven debt.  In approaching my task I proceed on the basis that Mr Page is in effect appealing the Assignee’s decision and that I should apply the principles that govern a general appeal.[3]

[3] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[7]      Mr Page argues that as the judgment should never have been obtained against him “personally, [he] could therefore have no grounds on which to make an application for a rehearing in the Environment Court”.

[8]      In my assessment, this submission is misconceived.   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[4] or possibly appealing the Environment Court’s decision on the grounds that it contained an error of law.[5]

[4] Resource Management Act 1991, s 294.

[5] Section 299.

[9]      The Assignee had to decide whether or not to admit the costs judgment as a

proven debt against Mr Page’s estate.

[10]     In my assessment, the decision of the Assignee was appropriate for three reasons:

(1)       The judgment was against Mr Page (and Ms Wilson). (2)      The judgment predated the adjudication of bankruptcy.

(3)       The judgment was from a Court of competent jurisdiction.

[11]     In these circumstances it would have been surprising if the Assignee had not admitted the judgment as being a proven debt against the bankrupt’s estate.  There is, however, one aspect of this case that may give rise to the need for me to revisit my decision.     Mr  Page  explained  that  he  was  prosecuted  under  the  Resource Management Act in relation to the same matters that gave rise to the Environment Court’s costs award.   Mr Page says that he pleaded guilty to all but one of the charges that were brought against him under the Resource Management Act and that he was ordered to pay $35,000 to the Council.  Mr Page says that sum related to the same expenses incurred by the Council that formed the basis of the Environment Court’s costs award.  Mr Page says that he paid the $35,000 ordered by the District Court.

[12]     Unfortunately, I have no information which enables me to determine whether or not Mr Page is correct.   If Mr Page is correct, and if he has already paid the matters that formed the basis of the Environment Court’s costs award then there might be a basis for revisiting the appropriateness of the Assignee continuing to

include the Environment Court’s costs judgment as a proven debt.

[13]     However, at this juncture, the evidence falls well short of enabling me to determine if Mr Page’s submission is correct.  Currently, Mr Page is the subject of an Environment Court costs award which the Assignee was fully entitled to take into account when assessing what debts were proven against Mr Page’s estate.

Conclusion

[14]     For these reasons, the application to have me reverse the decision of the

Assignee must be dismissed.

D B Collins J

Solicitors:

Insolvency and Trustee Service, Christchurch for Second Respondent