Page v Wanganui District Council - [2012] NZHC 2622

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2012-483-183 [2012] NZHC 2622

IN THE MATTER OF an application to annul the bankruptcy of AN Page under s 309(1)(a) of the Insolvency Act 2006

BETWEEN ADRIAN NEIL PAGE Applicant

ANDWANGANUI DISTRICT COUNCIL Respondent

Hearing: 3 October 2012
(Heard by Video-Conference Link)

Counsel: Applicant in person
JM Woodcock for the Respondent Wanganui District Council

Judgment: 11 October 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.00 pm on 11 October 2012.

Solicitors: Armstrong Barton, Solicitors, PO Box 441, Wanganui
Official Assignee, Private Bag 5091, Wellington 6145

AN PAGE V WANGANUI DISTRICT COUNCIL HC WANG CIV-2012-483-183 [11 October 2012]

Introduction

[1] On 24 February 2011 the applicant Mr Adrian Neil Page (Mr Page) was adjudicated bankrupt on an application brought by the judgment creditor respondent, Wanganui District Council, at the High Court at Wanganui in proceeding number CIV-2010-483-134.

[2] The debt upon which the bankruptcy application was brought amounted to

$12,000.00 and was based upon an order for costs of this amount made against both Mr Page and his wife/partner Nicola Janet Wilson (Ms Wilson) in the Environment Court on 11 March 2010.

[3] Mr Page now applies for orders under s 309(1)(a) of the Insolvency Act 2006 (the Act) annulling his bankruptcy. This is his second application of this sort, following an earlier application by Mr Page to this Court to annul the adjudication order, also essentially under s 309(1)(a) of the Act, which application was dismissed on 21 July 2011.

[4] The present application as I have noted is advanced on the sole ground contained in s 309(1)(a) Insolvency Act 2006 which states:

309 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 ...

Background

[5] Mr Page and his wife/partner Ms Wilson had a series of dealings with the

Wanganui District Council (the Council) over the development of a property at 86

Ikitara Road, Wanganui which culminated in an Environment Court hearing at which they were ordered to pay the Council’s costs of $12,000. On the basis of that order, the Council applied for orders of adjudication of Mr Page and Ms Wilson which
were granted at the High Court at Wanganui on 24 February 2011.[1]

[1] See CIV-2010-483-134, and CIV-2010-483-133.

[6] On 14 March 2011, Mr Page applied to have his adjudication annulled on the basis that he should not have been adjudicated bankrupt. As noted above, on 21 July
2011 that application was dismissed as it did not raise any new matters not previously before the Court, and was seen as an attempt to relitigate grievances that Mr Page had with the Council.

[7] The present application is Mr Page’s second attempt to have his bankruptcy annulled. He appeared before me in person, as…

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.

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Details

Case: [2012] NZHC 2622
Decision Date: 11 October 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Page v Wanganui District Council revolves around Mr Adrian Neil Page's application to annul his bankruptcy, which was ordered on 24 February 2011 following a debt of $12,000 owed to the Wanganui District Council. This was the second application by Mr Page to annul his bankruptcy, with the first being dismissed on 21 July 2011. The applicant contends that the adjudication should be annulled under s 309(1)(a) of the Insolvency Act 2006, which allows for annulment if the Court considers that the bankrupt should not have been adjudicated bankrupt.

The primary legal issue in this case is whether the Court has the jurisdiction to annul the bankruptcy order based on the applicant's claims about procedural errors in the Environment Court's decision. Mr Page argues that the bankruptcy should be annulled as the Environment Court wrongly identified him and his wife as the property owners, and the Council did not follow the correct procedure for issuing abatement notices. The Court must determine whether these issues constitute a defect in procedure, abuse of process, or omission of a material fact, which would justify annulment under s 309(1)(a) of the Act.

Associate Judge D.I. Gendall found that Mr Page's arguments did not meet the criteria for annulment under s 309(1)(a) of the Act. The Judge noted that the issues raised were already considered in earlier proceedings and did not present new material facts. The Court held that it did not have the jurisdiction to review the merits of the Environment Court's decision, as that would require an appeal, which Mr Page did not undertake. Additionally, the Court found that even if the objections were valid, they would not have changed the outcome of the bankruptcy adjudication. Therefore, the application to annul the bankruptcy was dismissed. The Court also awarded costs to the respondent Council and the Official Assignee.

In conclusion, the Court dismissed Mr Page's application for the annulment of his bankruptcy, finding that the application did not meet the statutory criteria for annulment and was an attempt to re-litigate past grievances. The Court emphasized that the insolvency regime should not be used for such purposes.

Orders