Prescott v Police - [2017] NZHC 2701

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1097 [2017] NZHC 2701

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of PETER RICHARD PRESCOTT

BETWEEN

PETER RICHARD PRESCOTT Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 October 2017

Appearances:

Applicant in person
K H Morrison and G Montgomery for the Respondent

Judgment:

25 October 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Meredith Connell (K Morrison/G Montgomery), Auckland, for the Respondent

Copy for:
Peter R Prescott, Applicant

PRESCOTT v NEW ZEALAND POLICE [2017] NZHC 2701 [25 October 2017]

[1] Mr Prescott applies to set aside a bankruptcy notice dated 2 June 2017. The creditor is the New Zealand Police. The bankruptcy notice is based on an order for costs of $5,819.01 made in this court in April 2017. Mr Prescott was served on
14 June 2017. He filed his application to set aside the notice on 21 June 2017. That was in time. Under r 24.10(1) of the High Court Rules the time for complying with the notice has been extended until the decision on his setting-aside application.

Adjournment application

[2] At the start of the hearing, Mr Prescott asked for an adjournment. I declined to adjourn. Mr Prescott gave as his reason for seeking an adjournment the fact that he had received substantial documents from the Police, and also from lawyers acting for the Auckland Council.

[2] I need to explain some background. Mr Prescott has three applications to set aside bankruptcy notices: one against a bankruptcy notice issued by the New Zealand Police and two against bankruptcy notices issued by the Auckland Council. The three applications have been case-managed together. All applications were set down for hearing for today. I issued a minute directing that the applications against the Auckland Council would be heard at 2:15pm instead of 10:00am. That was to allow for the matters to be heard separately. In case management directions on
14 July 2017 for all the applications Judge Doogue directed that Mr Prescott was to file his submissions 15 working days before the hearing, and the respondents were to file their submissions 10 working days before the hearing. That was to give Mr Prescott the opportunity to prepare for the hearing in the light of submissions made by the respondents. Mr Prescott was a few days late in filing his submissions. The respondents asked for an extension of time. I directed that they were to file their submissions by 13 October 2017. The Police did so. That gave Mr Prescott 12 days (including weekends and Labour Day) to consider the Police submissions and prepare for the hearing. That is a longer period than is normally given to applicants on the hearing of applications. The standard direction is to provide that an applicant supply submissions 10 working days before the hearing, and the respondent to file submissions 5 working days before the hearing. Mr Prescott has had just under…

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 2701
Decision Date: 25 October 2017

CaseChat Overview and Summary

In Prescott v Police, Mr Prescott applied to set aside a bankruptcy notice issued by the New Zealand Police, based on a costs order made in April 2017. The court considered the legal issues, including the proper interpretation of the Insolvency Act 2006, the jurisdiction of the court, and whether there were grounds for setting aside the bankruptcy notice. Mr Prescott argued that he was not a “person” within the meaning of the Insolvency Act and that he was solvent. He also argued that the use of the bankruptcy notice was an abuse of process. The court dismissed Mr Prescott’s application and ordered him to pay the Police’s costs. The court held that Mr Prescott was a natural person and the court had jurisdiction over him. It held that solvency was not relevant on an application to set aside a bankruptcy notice. It held that the order for costs was made after a hearing on an application brought by Mr Prescott, and there was no good reason for the court to look behind the judgment. The court held that there were no good grounds for setting aside the bankruptcy notice. The decision highlights the importance of following legal advice and the potential consequences of self-representation in complex legal proceedings.

Orders