Pinehurst School Incorporated v Virgo

[2013] NZHC 1194

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1008 [2013] NZHC 1194

IN THE MATTER	of the Insolvency Act 2006
IN THE MATTER	of the bankruptcy of Simon Virgo
BETWEEN	PINEHURST SCHOOL INCORPORATED Judgment Creditor
AND	SIMON VIRGO Judgment Debtor

Hearing:

23 May 2013

Counsel:

MR Taylor for judgment creditor

No appearance for judgment debtor

Judgment:

23 May 2013

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to set aside bankruptcy notice]

Solicitors:           Parlane Law, Auckland                 S Virgo, Auckland

PINEHURST SCHOOL INCORPORATED v VIRGO [2013] NZHC 1194 [23 May 2013]

[1]      The judgment debtor applies for an order setting aside the bankruptcy notice. The application was listed for first call before Associate Judge Bell on 16 April 2013. Associate Judge Bell adjourned the application for a telephone conference that afternoon because advice had been received that the judgment debtor was unable to reach the court because of a road slip.  Contact with the judgment debtor was not able to be made.   Associate Judge Bell adjourned the application to  my list at

11:45am on 23 April 2013.

[2]      The judgment debtor forwarded an email to the court seeking a further adjournment.  I granted that adjournment until 11:45am today.  A further request by the judgment debtor for an adjournment has been received.

[3]      The application to set aside the bankruptcy notice is opposed.   One of the grounds in opposition is that the application was filed out of time.  The affidavit of service of the bankruptcy notice discloses that service was effected on 6 March 2013. The judgment debtor suggests otherwise, although I have no specific reason to doubt the evidence of the process server who effected service.

[4]      The judgment debtor’s application to set aside the bankruptcy notice is date- stamped as having been received on 26 March 2013 although there is documentation on the court file suggesting that it may have been received on 21 March 2013.  For the purposes of this judgment I will accept that the document was received by the court on 21 March 2013.

[5]      Section 17 of the Insolvency Act 2006 requires a judgment debtor served with a bankruptcy notice in New Zealand to, either comply with the requirements of the notice or satisfy the court that the judgment debtor has a cross-claim against the creditor.  The time for this is ten working days after service of the bankruptcy notice. In this particular case, assuming that service was effected on 6 March 2013, the application was not made within the ten working-day requirement.

[6]      Once the tenth working day after service, not counting the day of service, has passed the act of bankruptcy has occurred.  Accordingly, provisions which provide for the extension of time for the making of applications do not assist.   That is

because you cannot undo an event which had already occurred, namely the act of bankruptcy.1

[7]      The result in this case is that as the application to set aside the bankruptcy notice was filed after the tenth working day after service, there is no provision for the court to deal with the application.  Accordingly the application to set aside the bankruptcy notice is dismissed.

[8]      The judgment creditor is entitled to costs which I fix based on Category 2

Band B, together with disbursements as fixed by the Registrar.

JA Faire

Associate Judge

1   Re Scott ex parte ANZ Banking Group Ltd HC Rotorua B1330-89, 15 September 1989, Fisher J; Gillon v Blueprint Developments Ltd HC Auckland B2164089, 27 March 1990, Robertson J; Alexander v SH Lock (NZ) Ltd (1998) 12 PRNZ 249.