Payne v New Zealand National Party

[2012] NZHC 2431

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2009-476-000571

UNDER  the Insolvency Act 2006

IN THE MATTER OF     the Bankruptcy of ROGER JOHN PAYNE BETWEEN  ROGER JOHN PAYNE

Judgment Debtor

ANDNEW ZEALAND NATIONAL PARTY Judgment Creditor

CIV-2009-476-000618 [2012] NZHC 2431

AND UNDER                 the Insolvency Act 2006

IN THE MATTER OF     the Bankruptcy of ROGER JOHN PAYNE BETWEEN  ROGER JOHN PAYNE

Judgment Debtor

ANDAMY ADAMS, JUDITH MARY KIRK, ROGER FRANCIS ALBION BRIDGE AND JOHN SKINNER

Judgment Creditors

Hearing:         18 September 2012

Appearances: D R Forman for Judgment Creditors

Mr R J Payne in person (Judgment Debtor) Judgment:  19 September 2012

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

ROGER JOHN PAYNE V NEW ZEALAND NATIONAL PARTY HC TIM CIV-2009-476-000571 [19

September 2012]

[1]      There are two applications before the Court to adjudicate Mr Payne bankrupt

– the first by the New Zealand National Party and the second by Amy Adams and others.   The former is based on a judgment from the High Court in Timaru dated

18 June 2009.  The latter is based on a judgment of the High Court at Christchurch dated  22  July  2009.    No  part  of  either  judgment  debt  has  been  paid.    Both applications to adjudicate Mr Payne bankrupt were filed in 2010.  Both have been opposed since that time and both have been the subject of numerous adjournments.

[2]      The applications were called before me in a List on 18 September.  Mr Payne again sought an adjournment of both applications.  At the previous call on 31 July I granted an adjournment to 18 September and noted “Unless an application has been made to the District Court to set aside the judgment there is very unlikely to be a further adjournment”.  The reference to the District Court was in error, and should have been to the High Court.

[3]      On 14 September 2012 Mr Payne filed a written application for adjournment of the applications.  It reads:

I, Roger John Payne, Respondent, of Orari apply for an adjournment of the insolvency action by the NZ National Party against me, relating to opposing lawyer costs for a public interest case where I could not personally benefit, heard in the Christchurch High Court concerning the exposure of undemocratic candidate selection fixing in the National Selwyn Electorate

2008 under Electoral Act 1993 provisions, on the grounds shown in the attached affidavit.

[4]      The affidavit sworn in support raised a number of issues, and I will refer to these in turn.  I record that Mr Payne stated that his application applied to both sets of proceedings, which should be treated as one for present purposes.

[5]      First, Mr Payne says there are four applications before the High Court which are yet to be heard:

a)  Application for adjournment of Insolvency Act action filed 23 November

2010.

b) Application for counterclaim in excess of alleged judgment debt for misuse of court process and defamatory action in the creation of the alleged debt filed 23 November 2010.

c) Application for stay of Insolvency Act action pending resolution of counterclaim filed 23 November 2010.

d) Application  for  judicial  review  of  the  “trail  of  deceit  evident  in  my interlinked Wellington  home title and  National  Party Selwyn  2008  cases resulting in compounding of error causing major miscarriage of justice filed

17 February 2011”.

[6]      Mr Forman submitted that the first three of these applications were dismissed by the Court on 7 December 2010.

[7]      I accept Mr Forman’s submission.  In a Minute issued by Panckhurst J from

the hearing on that day his Honour said:

I am in no doubt that a stay based on the grounds advanced by Mr Payne is inappropriate.

His Honour went on to discuss Mr Payne’s intention to sell his house, and a possibility  that  he  would  offer  a  second  mortgage  in  favour  of  the  judgment creditors.  To enable that proposition to be considered by the creditors he adjourned the bankruptcy applications to 22 February 2011.

[8]      In relation to the fourth application, Mr Forman advised that the creditors have never been served with a copy of an application for judicial review, though they did receive from Mr Payne a document dated 17 February 2011 referring to the filing of an application for judicial review.   He further submitted that even if such an application had been filed it would be irrelevant to whether or not the debts were owing in accordance with judgments of this court.

[9]      There is no evidence on the file of any application for judicial review having been filed as alleged; nor is there any further information before the Court in relation to any such application.  I am not prepared to rely on the statement by Mr Payne that

he has filed such an application, in the absence of even a reference to which Registry of the Court it is said to have been filed in, let alone a copy of the application for the Court to consider.   Further, I agree with Mr Forman that it is most unlikely to be relevant  to  the  existing judgments  of this  Court  which  form  the  basis  of these applications for bankruptcy, and remain unchallenged.  The very description of the application for judicial review gives me no confidence that it was an application with a sound legal foundation.

[10]     For  these  reasons  I  reject  the  first  ground  on  which  Mr  Payne  seeks adjournment of the bankruptcy applications.

[11]    The second ground relied on by Mr Payne alleges that there are “false bankruptcy allegations at the heart of the counter-claim” to which I have referred in paragraph b) above, which are the subject of two actions.  First:

Misconduct of the unjust sale process on my Wellington home by real estate agents  ReMax  Leaders  is  currently  before  the  Real Agents  Disciplinary Tribunal, Wellington under the Real Estate Agents Authority Act 2008.

This case was filed on 25 November 2011.  The initial hearing took place on

7 August 2012.  The timing of the continuation hearing has not been fixed yet.

[12]     The second action is described as:

Recall  of  fatally  flawed  bankruptcy  process  before  the  High  Court Wellington filed 30 August 2012 in the light of new evidence discovered in the [misconduct proceeding just described].

This recall hearing is said to be due to start on 24 September 2012.

[13]     On the former of these two points Mr Forman submitted that the Court did not have any evidence from Mr Payne in relation to his application against his real estate agent, and in any event it is irrelevant to these applications for adjudication.  If Mr Payne does have a claim it would not be prevented by an order for adjudication. In relation to the second, Mr Forman noted that Mr Payne was again referring to a new application to the court without specifying its nature and all he could tell from the information in Mr Payne’s affidavit was that it may relate to his claim against his real estate agent, again irrelevant to the bankruptcy proceedings.

[14]     Any issues Mr Payne may have with his real estate agent are for him to deal with as he sees fit; the actions he is taking with the Disciplinary Tribunal are noted but are irrelevant to the applications to adjudicate him bankrupt on the basis of existing High Court judgments.   The second action was supported by a paper Mr Payne produced, said to be issued by the High Court at Wellington.   It refers to proceeding  CIV-2004-485-001723,  and  a  case  described  as  Attorney-General  v Payne.  The notice from the court says that “The above matter has been set down for First Call” and gives a date of Monday, 24 September at 10.00 am.  Nothing further about the nature of the case is shown.  I observe, however, that the proceeding was issued in 2004, Mr Payne is shown as a defendant to an action by the Attorney- General, and there is no information on the notice, nor in the material provided by Mr Payne, that shows how this action has any relevance whatever to the applications for bankruptcy which are before me. This ground does not support the granting of an adjournment.

[15]     The next ground advanced by Mr Payne is that he has a complaint before the Judicial Conduct Commissioner in relation to the 2008 cases which gave rise to the debts on which the judgment creditor relies.  No further information is provided.  I find that this is irrelevant to the status of the judgments relied on by the judgment creditor.

[16]     The next ground relied on by Mr Payne is stated:

Evidence on the public interest nature of my National Selwyn 2008 case was put before the 2012 Review of MMP voting on:  10 May 2012

27 August 2012

[17]     This is irrelevant to the issues before me.   Whether the 2008 proceedings were or were not matters of public interest, this court made orders for payment of costs.   Those stand.   The fact that Mr Payne has raised this issue with those conducting the 2012 review of the MMP voting system has no relevance to the issues I am required to determine.

[18]     The next ground relied on by Mr Payne is a general criticism of an alleged lack  of  an  itemised  account  for  the  claim  relied  on  by the  judgment  creditors. Mr Payne says there has not been a hearing in relation to the amount claimed and “it

is  considered  a  rort  of  the  court  system  in  view  of  the  very  limited  services provided”.  He says that as the Selwyn 2008 case was one of public interest, costs should not have been awarded.  He did not stand to benefit personally.  This issue has never been answered.   He sees the claim “as attempted theft and it must be exposed”.

[19]     This Court ordered costs on the basis of material placed before it at the time. A general criticism of the amount of the costs or the court process, which is all that this ground can be described as, does not in my opinion give me sufficient grounds to exercise any discretion I may have not to accede to the applications to bankrupt Mr Payne.  His views on the justice or otherwise of the costs awards are no doubt genuinely held, but they do not constitute a reason not to pay the sums ordered to be paid.

[20]     The next issue raised by Mr Payne refers again to the proceeding said to have been brought in the High Court at Wellington, to which I have referred.  He says that “the bankruptcy allegations” will be corrected in this process, and a counterclaim against the National Party for a denial of natural justice in its bankruptcy allegations against him, and unjust besmirching of his character, can be progressed.

[21]     I have already said all that needs to be said about the Wellington process. This ground is without foundation.

[22]     Mr Payne then says that he has not received any response from opposing counsel since the first four applications referred to in this judgment were brought.  I reject that statement.  As noted, all have been dealt with by the Court, and no more need be said.

[23]     Finally, Mr Payne says that time is required “for the concurrent action to be processed”  especially  the  actions  in  relation  to  his  real  estate  agent  and  the Wellington High Court proceeding.  Given the conclusions I have reached on those (above) I do not consider that time is required for any further steps that may be taken on those matters to be concluded, before the current bankruptcy applications before me are determined.

[24]     For these reasons I find there is no sufficient foundation in any of the grounds advanced by Mr Payne, or all of them considered cumulatively, to further adjourn the applications for bankruptcy against him.

Outcome

[25]     I adjudicate Mr Payne bankrupt on application CIV-2009-476-571 brought by the New Zealand National Party as judgment creditor.

[26]     Given this decision, the application in proceeding CIV-2009-476-618 by Amy Adams and others is dismissed.   I award to the judgment creditors on both proceedings costs on a 2B basis together with disbursements which are to be fixed by the Registrar.

[27]     The bankruptcy order is timed at the release of this judgment, at 4.00 pm on

19 September 2012.

J G Matthews

Associate Judge

Solicitors:

RSM Law, PO Box 557, Timaru.
Mr R J Payne, C/- Willowbank Farm, 73 Muff Road, Orari RD 26, Temuka.