Prescott v Auckland Council - [2017] NZHC 2698

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-933

CIV-2017-404-935 [2017] NZHC 2698

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of PETER RICHARD PRESCOTT

BETWEEN

PETER RICHARD PRESCOTT Applicant

AND

AUCKLAND COUNCIL Respondent

Hearing: 25 and 26 October 2017

Appearances:

Peter Richard Prescott, self-represented
K F Quinn and J Cooper for the Auckland Council

Judgment:

26 October 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Auckland Council in-house solicitors (K F Quinn/J Cooper), Auckland

Copy for:
P R Prescott, Applicant

PRESCOTT v AUCKLAND COUNCIL [2017] NZHC 2698 [26 October 2017]

[1] Mr Prescott applies to set aside two bankruptcy notices issued by the Auckland Council. The bankruptcy notice in CIV 933 is for $2,300.00. That is based on a costs order of the District Court on 12 April 2011 in which Mr Prescott discontinued a claim against the council and a council employee. The bankruptcy notice in CIV
935 is for $4,941.00. That is for costs ordered against Mr Prescott in a proceeding in the District Court at Auckland in which his claim against the council was dismissed. The date of the District Court order is 21 April 2015.

[2] Yesterday, I dealt with another application by Mr Prescott to set aside a bankruptcy notice. In that case the creditor was the New Zealand Police. Mr Prescott applied to set aside the Police bankruptcy notice and the Auckland Council bankruptcy notices in June this year. The three proceedings have been case- managed together. On 13 July 2017, Associate Judge Doogue gave directions for the hearing of all three applications on 25 October 2017. All cases were called yesterday. I had issued a minute in which I indicated that the council applications would be heard on the afternoon of 25 October. In the event, the time required for the Police application went into the afternoon and I adjourned the council applications until today.

The adjournment application

[3] At the start of the hearing on 25 October 2017, Mr Prescott asked for an adjournment. I declined the adjournment application and gave reasons for that in my judgment on the Police application. I now repeat matters, but do not go into the matter as extensively as I did with the Police application.

[4] When he gave case management directions. Associate Judge Doogue directed that Mr Prescott was to file and serve his submissions in support of both applications
15 working days before the hearing. He directed the Police and the Auckland Council to file their submissions 10 working days before the hearing. Mr Prescott was late in filing his submissions and the creditors sought extensions of time to file theirs. I directed them to file their submissions by 13 October 2017. That gave Mr Prescott 12 days in which to prepare for the hearing. Mr Prescott said that he was unable to prepare adequately because the creditors sent him copies of authorities

they relied on…

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: [2017] NZHC 2698
Decision Date: 26 October 2017

CaseChat Overview and Summary

The applicant, Peter Richard Prescott, sought to set aside two bankruptcy notices issued by the Auckland Council. The first notice, CIV 933, was for $2,300.00 based on a District Court costs order from April 2011, while the second notice, CIV 935, was for $4,941.00 based on a District Court costs order from April 2015. The court had to decide whether the bankruptcy notices were valid and if they should be set aside. The court considered procedural issues such as whether the bankruptcy notices were served correctly, and substantive issues such as whether the debts had been discharged. The court found that the bankruptcy notices were procedurally valid, but the application to set them aside was out of time. The court also found that the debts had not been discharged, but the bankruptcy notices were now redundant and the council would have to start again. The court encouraged the parties to resolve the amounts owing by taking account of all the payments that Prescott had made.

Orders