Prescott v Auckland Council

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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…

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Details
Case
[2017] NZHC 2698
Decision Date

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.

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