PETER GLEN GILL AND ANTHONY JAMES LETHLEAN
[2025] NZCA 161
•9 May 2025 at 3:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA129/2025 |
| BETWEEN | PETER GLEN GILL |
| AND | ANTHONY JAMES LETHLEAN |
| Hearing: | 5 May 2025 |
Court: | Thomas and Woolford JJ |
Counsel: | Applicant in person |
Judgment: | 9 May 2025 at 3:30 pm |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted. Mr Gill is to file an appeal against the order for adjudication as a bankrupt within 20 working days of the date of this judgment.
BWe direct that a copy of this judgment be sent to the High Court at Christchurch prior to the hearing of Mr Gill’s challenge to the decision of the Official Assignee to admit the claim by Mr Morland and Mr Gill’s application for annulment of his bankruptcy.
CIn light of Mr Gill’s disability, we direct the appointment of amicus to assist Mr Gill in drafting the notice of appeal and to appear on his behalf at the hearing of the appeal. We also waive security for costs.
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REASONS OF THE COURT
(Given by Woolford J)
Peter Gill was adjudicated bankrupt on 28 October 2021. If he wished to appeal against his adjudication he had to do so within 20 working days.[1] That period of time can however be extended by the Court.[2] Mr Gill now applies for an extension of time to file an appeal. He filed the application on 5 March 2025, more than three years and four months after his bankruptcy.
Bankruptcy
[1]Court of Appeal (Civil) Rules 2005, r 29(1)(a).
[2]Rule 29A.
Mr Gill was bankrupted over a debt of approximately $5000 being a costs award to the judgment creditor, Anthony Lethlean, following a dispute over Mr Gill’s eligibility for income protection insurance during the COVID-19 pandemic. When the judgment creditor’s application for an order of adjudication was first called in the High Court in Christchurch on 16 September 2021, Associate Judge Lester recorded:
Mr Gill is to start an automatic payment of $100 per week, the first payment of $400 per month on the 20th of September. [The application for an order of adjudication] is adjourned to the 28th of October to monitor payments, so that will mean two payments will have been made. If payments are not honoured, further time is unlikely.
The Judge made it plain to Mr Gill that he had to attend the adjourned hearing on 28 October. The transcript of the initial hearing reads:
Mr Gill: And, and if I make both payments, do I need to attend?
Judge: Yes.
Mr Gill: I do. Yes.
Judge: Yes. If the first payment is not made then the creditor can ask for this to come back earlier.
Mr Gill: Yes.
Judge: Ah, if the payments are made then we need to talk about what’s going to happen then. Ah, so that’s why you need to be here.
Mr Gill: Yea.
Judge: Ok. So you understand that?
Mr Gill: Yes I do Sir.
Mr Gill did not appear in Court on 28 October 2021 as directed by the Judge. Based on this, and the Judge’s belief that Mr Gill did not honour the payment plan, the Judge adjudicated Mr Gill bankrupt.
Application for an extension of time
In his application for an extension of time to file an appeal, Mr Gill states the grounds for the application are:
Payments were never missed.
Peter is dyslexic was told to pay $100 per week OR $400 per month.
Opted to pay monthly option, never missed a payment.
See screen shots of payments attached.
The screenshots show two payments of $400 to the solicitors acting for the judgment creditor at 9:01 pm on 20 September 2021 and at 7:28 am on 28 October 2021. The latter payment was only made on the morning of the second call of the judgment creditor’s application, and obviously counsel for the judgment creditor had not been made aware of the payment before she appeared in Court before the Judge. The order for adjudication was made at 10:10 am on 28 October 2021.
In an affidavit dated 18 November 2024 filed by Mr Gill in an unrelated application to cancel a third‑party creditor’s claim in his bankruptcy, he states:
… Judge Lester ordered that I pay $100 a week or $400 a month toward the debt. I believed this arrangement would allow me to manage the debt, but a misunderstanding about the payment schedule led to my bankruptcy being filed. I made the first payment on time, but due to confusion about the payment due dates, my bankruptcy was processed, and I lost my business, my marriage, and many personal assets as a result.
Mr Gill told us that the reason he did not attend court on 28 October 2021 was that he thought the next court hearing was 28 October 2022 when the application for adjudication would be dismissed if he had made twelve payments of $400 a month to the judgment creditor. We note that twelve payments of $400 approximates the judgment creditor’s claim. Mr Gill also advises the Court that, following the first call of the application for an order of adjournment, he requested the High Court to send him a notice of the adjourned date but he says they never did.
Other proceedings
Mr Gill filed his application in this Court for an extension of time to file an appeal on 5 March 2025. He had earlier filed an application in the High Court, challenging the decision of the Official Assignee to admit a claim by a third‑party creditor, Thomas Morland, in his bankruptcy under s 238 of the Insolvency Act 2006. In addition, Mr Gill has also filed an application in the High Court to annul his bankruptcy on the basis of one or more grounds set out in s 309 of the Insolvency Act. These are set down for hearing in the High Court on 23 June 2025 and 23 July 2025.
Claims in Mr Gill’s bankruptcy
The Official Assignee advises the Court that the current claims in Mr Gill’s bankruptcy are as follows:
| Claimant | Claim | Interest | Total |
| Mr Lethlean[3] | $4,528.40 | $4,528.40 | |
| Mr Lethlean | $4,881.00 | $919.87 | $5,800.87 |
| Inland Revenue | $102,356.29 | $19,290.02 | $121,646.31 |
| Mr Morland | $437,090.61 | $82,373.88 | $519,464.49 |
| $548,856.30 | $102,583.77 | $651,440.07 |
[3]We were not advised why there are two sums now listed as owing to Mr Lethlean.
In addition the Official Assignee’s costs and disbursements are as follows:
Official Assignee time costs $89,455.05 External legal fees and insurance $39,475.65 Less funds on hand - $393.69 $128,537.01
Claims and costs now total $779,977.08.
We are advised that there is a real dispute over the proof of debt filed by Mr Morland with the Official Assignee. Acceptance of the proof of debt is the subject of one of the other proceedings in the High Court. Apparently, Mr Morland relies on a District Court judgment he obtained against Mr Gill. Mr Gill says he never received notice of the District Court proceedings. Mr Vinnell, appearing for the Official Assignee, accepted before us that there is a “serious issue” as to whether Mr Gill was ever served with the District Court proceedings. We are also advised that Mr Morland’s claim relates to old cars and car parts left in the open on someone else’s property for eight years. If that is the case, Mr Morland’s claim may be questionable.
Position of the parties
As to the decision of the Official Assignee to admit Mr Morland’s claim in his bankruptcy, counsel for Mr Gill, Mr Morland and the Official Assignee advised the High Court by memorandum dated 7 March 2025 that the parties had engaged in without prejudice settlement discussions and sought an adjournment of the hearing of the application. This was granted by the High Court and a new date of hearing of 23 June 2025 was set down.
As to Mr Gill’s application to annul his bankruptcy, the original judgment creditor does not consent to Mr Gill’s application to annul his bankruptcy but given the quantum of the debt and the time passed it does not intend to take any formal steps to oppose the application. Mr Gill’s annulment application has been set down for hearing in the High Court on 23 July 2025.
The original judgment creditor takes a similar attitude to Mr Gill’s application for an extension of time to appeal. Counsel has advised the Court that it “does not intend to take steps to formally oppose this application but does not consent to the application for leave”.
Mr Vinnell has also filed a notice of appearance and advised that the Official Assignee will not take steps to influence whether Mr Gill remains bankrupt. We did not hear from the Inland Revenue Department or Mr Morland as to their attitude towards Mr Gill’s application for extension of time to appeal.
Discussion
The principles that govern an application for an extension of time to appeal under r 29A were confirmed by the Supreme Court in Almond v Read.[4] The ultimate question is what the interests of justice require, in the particular circumstances of the case. Relevant considerations include:
(a)the length of the delay;
(b)the reason for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial. Some latitude in respect to compliance with case management requirements can be permitted to litigants in person if required by overall justice.[5]
[5]Rabson v Gallagher [2011] NZCA 204 at [9].
Looking then at the factors identified in Almond v Read, the length of the delay is substantial. The reasons for the delay are also not specifically identified by Mr Gill, but it is obvious that his life has been in a state of turmoil since he was bankrupted.
As to the position of the parties, as noted above, the original judgment creditor did not appear at the hearing, instead advising the Court that he neither opposed nor consented to Mr Gill’s application. Counsel for the Official Assignee advised the Court that he would not take steps to influence whether Mr Gill remained bankrupt.
As noted above, we did not hear from the Inland Revenue Department or Mr Morland, although it appears counsel for Mr Morland is pursuing a negotiated settlement of his claim. As to possible prejudice to those with a legitimate interest in the outcome, there is a risk that the Official Assignee will not be able to recover its costs if Mr Gill’s application for an extension of time and subsequent appeal were successful. On the other hand, if Mr Gill’s bankruptcy was annulled, the Official Assignee could apply under s 309(5)(a) of the Insolvency Act for reasonable remuneration of its costs. However, the Official Assignee is not a party to Mr Gill’s application and, as serving a valuable public function, undertakes a wide range of actions for which it cannot be reimbursed.
We acknowledge that the significance of the proposed appeal is limited. Although the issues raised have no general significance, they are however, hugely significant to Mr Gill.
Finally, in the circumstances of this case, we step back and look at the overall interests of justice. Mr Gill suffers from a disability — he is dyslexic and finds it difficult to read and write. We accept unreservedly that the court process was confusing and alarming for him. His literacy issues meant he found it extremely difficult to understand the process and what was expected of him. Mr Gill was undoubtedly suffering from stress and low mood as confirmed by a doctor’s certificate at the time, which meant he was unable to work and receiving insurance payments from Cigna Insurance. It is evident that Mr Gill has railed against the adjudication and has been frustrated and bewildered by his dealings with the Official Assignee. He has constantly struggled to find a way to end his current predicament, which has seen him bankrupted for a judgment debt of $5,000, which has ballooned into claims of approximately $780,000.
Mr Gill had also actually paid two monthly instalments of $400 as directed by the Judge at the time of the second call of the application for an order for adjudication. The Judge was not advised that Mr Gill had made the second payment and was up to date with his payments when he made the order for adjudication. There is, therefore, doubt whether the Court would have exercised its discretion to proceed to bankrupt Mr Gill if it knew of the second payment.
The fact that similar issues may be raised in the annulment proceeding does not mean that Mr Gill should not have the opportunity to correct what he sees as a gross injustice in an appeal against the issue of the order for adjudication in the first place.
Result
The application for an extension of time to appeal is granted. Mr Gill is to file an appeal against the order for adjudication as a bankrupt within 20 working days of the date of this judgment.
We direct that a copy of this judgment be sent to the High Court at Christchurch prior to the hearing of Mr Gill’s challenge to the decision of the Official Assignee to admit the claim by Mr Morland and Mr Gill’s application for annulment of his bankruptcy.
In light of Mr Gill’s disability, we direct the appointment of amicus to assist Mr Gill in drafting the notice of appeal and to appear on his behalf at the hearing of the appeal. We also waive security for costs.
Solicitors:
Cavell Leitch, Christchurch for Respondent
Anthony Harper, Christchurch for Official Assignee as interested party
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