R v The Queen - [2019] NZHC 2198

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH S 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2683

[2019] NZHC 2198

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of R

BETWEEN

M E R

Judgment Creditor

AND

M L R

Judgment Debtor

Hearing: 9 May 2019

Appearances:

Mr R, the Judgment Debtor in person

Mrs M Pollak and Mrs P Grant for the Judgment Creditor

Judgment:

4 September 2019

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 4 September 2019 at 10.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Neilsons Lawyers, Auckland

Copy to:
Mr R

R v R [2019] NZHC 2198 [4 September 2019]

[1] On 21 September 2016 the judgment creditor (Ms R) obtained a judgment against the judgment debtor (Mr R) in the Family Court at Waitakere (the judgment). The judgment required Mr R to make payments to Ms R under the Property (Relationships) Act 1976 (the PRA), totalling $37,061.79.

[2] Mr R did not pay the $37,061.79, and on 6 December 2018 Ms R issued a bankruptcy notice for that sum. Mr R now applies to set aside the bankruptcy notice. The application is opposed by Ms R.

[3] A fixture was made to hear the application on 9 May 2019. Mr R applied for an adjournment of the fixture, and I heard from counsel and Mr R on the adjournment application on 6 May 2019. I refused the adjournment application, and directed Mr R to file any reply affidavits and written submissions by 5.00 pm on 8 May 2019.

[4] In the event, Mr R did not get his submissions filed and served by that date. However, I permitted him to make oral submissions at the hearing on 9 May 2019. Ms Pollak made oral submissions in reply.

[5] Neither party produced in evidence a copy of the judgment (given orally by Judge Rogers on 21 September 2016), although Mr R had referred to parts of it in his affidavit. A copy of the judgment has since been provided, and I have taken it into account in the judgment that follows.

[6]I now give judgment on Mr R's application to set aside the bankruptcy notice.

Mr R's application

[7]Mr R's application is brief. It states:

… Herewith is an Application to Set Aside a Bankruptcy Notice and to file a Counterclaim Set-Off or Cross Demand against the Judgment Creditor that exceeds the amount claimed by the Judgment Creditor; and that I could not put forward in the action or proceeding in which the Judgment was obtained.

[8]In support, Mr R filed an affidavit sworn on 21 January 2019.

[9] Mr R had been represented by counsel in the Family Court proceeding,…

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: [2019] NZHC 2198
Decision Date: 4 September 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Smith heard Mr R's application to set aside a bankruptcy notice issued by Ms R, the judgment creditor. Mr R, the judgment debtor, sought to set aside the bankruptcy notice on several grounds, including his inability to raise certain cross claims in the Family Court proceeding which resulted in the judgment against him. The court had to determine whether Mr R had a genuine and triable cross claim that he genuinely proposed to pursue and which exceeded the sum of $37,061.79. The court also had to assess if Mr R had cogent circumstances to show he was unable to present the cross claims in the Family Court proceeding.

The court found that Mr R had not provided sufficient evidence to show that he did not receive notice of the hearing and therefore did not have the opportunity to present his cross claims. Moreover, the court was not persuaded that Mr R genuinely proposed to pursue the cross claims he identified. As a result, the application to set aside the bankruptcy notice was dismissed, and costs were awarded to Ms R on a 2B basis, plus disbursements as fixed by the Registrar.

Orders