Police v Prescott - [2022] NZHC 306

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002232

[2022] NZHC 306

BETWEEN
NEW ZEALAND POLICE

Plaintiff

AND

PETER RICHARD PRESCOTT

Defendant

Hearing: 2 February 2022

Appearances:

P Shackleton and S Farnell for the Plaintiff Defendant in Person

Judgment:

28 February 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 28 February 2022 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Meredith Connell, Auckland

NEW ZEALAND POLICE v PRESCOTT [2022] NZHC 306 [28 February 2022]

[1] The New Zealand Police (the Police) seek an order adjudicating Peter Richard Prescott bankrupt. The Police contend that Mr Prescott committed an act of bankruptcy when he failed to comply with a bankruptcy notice dated
20 November 2020, served on him on 8 December 2020. Furthermore, that Mr Prescott owes the Police a debt of $27,710.46, comprised of costs awards against him made by this Court, the Court of Appeal and the Supreme Court.

[2] An application by Mr Prescott to set aside the bankruptcy notice was dismissed by Associate Judge Bell on 5 May 2021.1

[3] Mr Prescott raises three categories of objection to the application for adjudication:

(a)the Court does not have jurisdiction to adjudicate him bankrupt;

(b)the requirements of s 13 of the Insolvency Act 2006 are not met;

(c)there are active appeals that warrant the application being stayed or refused;

(d)he has other proceedings and alleged claims which must be “set-off” against the debt he owes the Police.

[4] I will consider each of these grounds of opposition in turn. But first, more on the background.

Background

Mr Prescott’s traffic infringement

[5] On 20 July 2016, a car registered in Mr Prescott’s name was captured by a speed camera travelling above the speed limit. Mr Prescott was charged with exceeding the speed limit.

1 Prescott v Police [2021] NZHC 1004 [Bankruptcy notice decision].

[6] Mr Prescott denied the charge. He subsequently failed to appear at a 27 October 2016 hearing before two Justices of the Peace. The Justices found the charge proved in his absence, ordering him to pay a fine of $80 and Court costs of
$30.2

[7] Mr Prescott appealed the Justices’ decision. On 21 March 2018, Judge Tremewan dismissed that appeal.3

Mr Prescott’s attempted judicial review

[8] Mr Prescott sought judicial review of Judge Tremewan’s decision. On 15 February 2019, Jagose J struck out that application and dismissed the proceeding on the grounds it was an abuse of process.4 His Honour awarded costs and disbursements, making Mr Prescott liable for $6,943.96.

[9] Mr Prescott unsuccessfully sought to recall Jagose J’s decision.5 He then applied to the Court of Appeal for an extension of time to appeal against Jagose J’s decision and to stay execution of the costs order. On 22 August 2019, the Court of Appeal declined both applications, awarding the Police costs.6 This decision made Mr Prescott liable for a further $5,798.

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.

Continue reading Police v Prescott

Details

AGLC: Police v Prescott [2022] NZHC 306
Case: [2022] NZHC 306
Decision Date: 28 February 2022

CaseChat Overview and Summary

The New Zealand Police sought an order adjudicating Peter Richard Prescott bankrupt. The Police contend that Mr Prescott committed an act of bankruptcy when he failed to comply with a bankruptcy notice dated 20 November 2020, served on him on 8 December 2020. Furthermore, that Mr Prescott owes the Police a debt of $27,710.46, comprised of costs awards against him made by this Court, the Court of Appeal and the Supreme Court. Mr Prescott raised three categories of objection to the application for adjudication: (a) the Court does not have jurisdiction to adjudicate him bankrupt; (b) the requirements of s 13 of the Insolvency Act 2006 are not met; (c) there are active appeals that warrant the application being stayed or refused; and (d) he has other proceedings and alleged claims which must be “set-off” against the debt he owes the Police. The court considered each of these grounds of opposition in turn. It rejected Mr Prescott’s jurisdictional challenge and found that the requirements of s 13 were met. It also found that there were no active appeals warranting the application being stayed or refused. Finally, it found that Mr Prescott had not discharged the onus on him to satisfy the court that it should exercise its discretion not to make the adjudication order. The court ordered that Peter Richard Prescott is adjudicated bankrupt. The Police are entitled to their costs on a 2B basis with disbursements fixed by the Registrar.

Orders