Rabson v Croad
[2013] NZHC 472
•18 March 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-2437 [2013] NZHC 472
IN THE MATTER OF the Insolvency Act 2006
AND
IN THE MATTER OF the bankruptcy of MALCOLM EDWARD RABSON
Judgment Debtor
BETWEEN ANDREW CROAD AND CHRISTINE MARGARET DUNPHY (AS LIQUIDATORS OF DOUBLE ZERO HOLDINGS LIMITED AND AS LIQUIDATORS OF VISION LIMITED) Judgment Creditors
Hearing: 12 March 2013
(Heard at Wellington)
Counsel: D.A. Bleier - Counsel for Judgment Creditors
M.E. Rabson - Judgment Debtor in Person
Judgment: 18 March 2013
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
This judgment was delivered by me on 18 March 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ....................................................................
Solicitors: McMahon, Butterworth, Thompson, Lawyers, PO Box 106073, Auckland
A CROAD AND CM DUNPHY (AS LIQUIDATORS OF DOUBLE ZERO HOLDINGS LIMITED AND AS LIQUIDATORS OF VISION LIMITED) HC WN CIV-2011-485-2437 [18 March 2013]
Introduction
[1] Before the Court is an application by the judgment creditor seeking an order to adjudicate the judgment debtor bankrupt in terms of s 13 Insolvency Act 2006.
[2] This application is based upon the judgment creditors’ contention that the judgment debtor committed an act of bankruptcy by failing to comply with a Bankruptcy Notice served upon him on 28 November 2011 claiming the sum of
$68,699.21. I will address calculation of this sum later in this judgment.
[3] On 5 December 2011 the judgment debtor applied unsuccessfully to set-aside this Bankruptcy Notice. That application was heard on 23 February 2012 and was dismissed, although the time for compliance with the Bankruptcy Notice was enlarged to 14 March 2012.
[4] Since that time a range of procedural matters have occurred regarding the principal debt, the subject of the Bankruptcy Notice. I will refer to these below.
[5] The present application is opposed by the judgment debtor. He seeks first, that this application be adjourned or halted pursuant to s 42 Insolvency Act 2006 pending the hearing in the Court of Appeal of an appeal he has lodged against a recent decision in this Court of Her Honour Justice Goddard. This decision lifted an earlier stay order in this proceeding. Secondly and alternatively, if this adjournment application was unsuccessful, then the judgment debtor advanced a range of arguments in opposition to the substantive bankruptcy application. As I understand the judgment debtor’s contentions, these essentially were to the effect that the original judgment debt claimed is in fact not due and secondly, that in any event the Court should exercise its discretion not to adjudicate him bankrupt here.
Parties’ Arguments and My Decision
[6] The present application is brought pursuant to s 13 Insolvency Act 2006 which provides as follows:
13 When creditor may apply for debtor’s adjudication
A creditor may apply for a debtor to be adjudicated bankrupt if
(a) The debtor owes the creditor $1,000 or more or, if 2 or more creditors join in the application, the debtor owes a total of $1,000 or more to those creditors between them; and
(b) the debtor has committed an act of bankruptcy within the period of
3 months before the filing of the application; and
(c) the debt is a certain amount; and
(d) the debt is payable either immediately or at a date in the future that is certain.
[7] In the present case, the original 11 April 2011 judgment of Her Honour Justice French in this Court, requiring the judgment debtor to repay to the judgment creditors the sum of $58,084.31 (other than a part-payment towards this debt of
$18,579.40 made on 20 September 2011 by a company related to the judgment debtor, Casino Properties Limited) remains outstanding.
[8] This original judgment of Her Honour Justice French has been the subject of an unsuccessful appeal by the judgment debtor to the Court of Appeal. This appeal was heard by the Court of Appeal on 17 October 2012 and dismissed in a judgment given on 31 October 2012. The judgment debtor then sought leave to appeal that 31
October 2012 Court of Appeal decision to the Supreme Court, but that leave application was itself dismissed by the Supreme Court on 19 February 2013. All appeal rights held by the judgment debtor with respect to that original underlying debt specified in the 11 April 2011 judgment are now exhausted.
[9] The net amount due in the judgment also remains outstanding and, with the additional costs and interest assessment on the judgment sum specified in the judgment creditor’s Bankruptcy Notice, the debt clearly exceeds the $1,000.00 threshold provided for in s 13(a) Insolvency Act 2006.
[10] In addition, it is clear that in a technical sense the judgment debtor has committed an act of bankruptcy within the period of three months before the filing of the present adjudication application in that he has failed to comply with the Bankruptcy Notice served on him earlier. On balance therefore, it seems clear here that the requirements of s 13 Insolvency Act 2006 have been satisfied.
[11] As to calculation of the total debt specified by the judgment creditors in the present bankruptcy application itself, this is set out in that application as follows:
(b) The debtor owes the creditors $58,084.31 being a final judgment or final order that the creditors obtained against the debtor on 11 April 2011 in the Wellington High Court (“the judgment debt”).
(c) In addition to the judgment debt, as at 3 April 2012, the debtor owes the creditors further amounts totalling $21,500.96 and therefore owes the creditors a total of $79,585.27, calculated as follows:
(i)
(ii)
The judgment debt -
Costs awarded in the same proceeding
$58,084.31 to the creditors on a category 2B basis of
$27,448.00 and disbursements of $1,746.30 fixed by the totalling $29,194.30 sealed in accordance with the above judgment -
$29,194.30
(iii)
Less payment of $18,579.40 received from
Casino Properties Limited on 20 September2011 -
($18,579.40)
(iv)
Interest on the resultant balance of $68,699.21 at the rate of 8.4% per annum from 11 April
2011 in accordance with section 87 of the
Judicature Act 1908 -
$ 5,660.06 (with interest accruing at a daily rate of
$15.81)
(v)
Costs on a 2B basis and disbursements totalling $526.00 for the issuing of a
Bankruptcy Notice. $ 526.00 (v)
Costs on a 2B basis and disbursements totalling $4,700.00 for judgment creditors’ opposition to the judgment debtor’s application to set-aside the bankruptcy notice and in accordance with the final judgment of the Wellington High Court sealed on 7 March 2012 -
$ 4,700.00
Total as at 3 April 2012:
$79,585.27
[12] Other than his request for an adjournment of this proceeding under s 42
Insolvency Act 2000, the judgment debtor’s opposition to the present application would appear to rely principally upon s 37 Insolvency Act 2006. This section sets out the basis upon which the Court at its discretion may refuse to adjudicate a judgment debtor bankrupt in the following way:
37 Court may refuse adjudication
The Court may, at its discretion, refuse to adjudicate the debtor bankrupt if- (a) the applicant creditor has not established the requirements set out
in section 13; or
(b) the debtor is able to pay his or her debts; or
(c) it is just and equitable that the court does not make an order of adjudication; or
(d) for any other reason an order of adjudication should not be made.
Procedural Matters Relating to the Bankruptcy Notice and Stay Orders
[13] As I have noted above, on 5 December 2011 the judgment debtor applied unsuccessfully to set-aside the Bankruptcy Notice served on him. In addition, in that application he sought an order staying the 11 April 2011 judgment of Her Honour Justice French. Both applications however were dismissed in a judgment I issued on
7 March 2012.
[14] Subsequently, on 12 June 2012 His Honour Justice Ronald Young made an order in this Court overturning my earlier judgment refusing a stay. Although the bankruptcy application remained on foot, this decision halted the bankruptcy proceeding pending determination of the judgment debtor’s appeal to the Court of Appeal which was at that point still extant.
[15] But, as I have noted above, that appeal subsequently failed. The Court of Appeal hearing on the appeal took place on 17 October 2012 and a judgment dismissing the appeal was delivered on 31 October 2012.
[16] The judgment creditors then applied to the High Court to lift the stay order of
His Honour Justice Ronald Young and this application was heard in this Court on 13
February 2013. In judgments issued by Her Honour Justice Goddard on 18 February
2013, as amended by a later judgment dated 28 February 2013, the judgment creditors’ application succeeded and the stay order was lifted. The present bankruptcy application therefore was reactivated.
[17] And, in her later judgment dated 28 February 2013, Her Honour Justice
Goddard made the following orders:
(a) The adjudication proceeding is adjourned to Monday, 11 March 2013, to provide Mr Rabson with an opportunity to settle his indebtedness to the judgment creditors by paying to them the sum of $97,727.41 no later than 3.00 pm on Thursday, 7 March 2013. The figure of
$97,727.41 includes the following costs and disbursements:
(i)$4,676.50 being costs on a category 2B basis for preparing and filing this interlocutory application and company written submissions;
(ii) $241.70 being the Ministry of Justice filing fee relating to this interlocutory application; and
(iii)$1,500.00 being the award of costs by the Supreme Court to the respondent (the present applicants).
[18] These 28 February 2013 orders were in substitution for earlier orders made in her judgment of 18 February 2013 where Her Honour Justice Goddard had given the judgment debtor until 3.00 pm on Thursday, 28 February 2013 to pay a reduced sum of $91,309.21 into Court, with the adjudication proceeding at that point adjourned to
4 March 2013.
[19] As it happened, the bankruptcy proceeding could not proceed on 11 March
2013 and was further adjourned to a call and hearing at 10.00 am on 12 March 2013.
[20] At that call, Mr Bleier appeared as counsel for the judgment creditors and Mr Rabson the judgment debtor appeared in person. Whereas in earlier proceedings in this Court Mr Rabson the judgment debtor had requested that I recuse myself as he had lodged a complaint against me with the Judicial Conduct Commissioner, he made no such request at any time before or during this hearing before me on 12
proper reason or basis for me to recuse myself here, even if such a request had been made.
[21] And, notwithstanding the earlier direction made in her judgment of 28
February 2013 for payment of the sum of $97,727.41 to be made, it was confirmed to the Court at the hearing on 12 March 2013 that no part of this sum had been paid and the total amount remained outstanding.
[22] A certificate of indebtedness was also filed at the hearing by counsel for the judgment creditors which specified this $97,727.41 amount still outstanding. Although before me the judgment debtor wished to make something of his claim that this was not an entirely correct figure, in my view there is little in this aspect. What is clear is that there can be little argument that, on the basis of the earlier figures in the judgment of Her Honour Justice French in this Court, together with interest and a range of subsequent costs and disbursements ordered against the judgment debtor, something well in excess of $90,000.00 is still outstanding to the judgment creditor. This whole matter has a long history in which it is hard to dispute that the judgment debtor now has committed an act of bankruptcy in his failure to comply with the judgment creditor’s Bankruptcy Notice.
[23] I will turn shortly to consider the matters referred to in ss 37 and 42
Insolvency Act 2006, bearing in mind that in his Notice of Opposition filed 18 May
2012 and in his submissions at the hearing before me the judgment debtor essentially advanced two arguments:
(a) The bankruptcy application should be further adjourned as he has recently filed an appeal with the Court of Appeal against the 18
February 2013 judgment of Her Honour Justice Goddard lifting the earlier order staying this proceeding; and
to bankrupt the judgment debtor as he is not insolvent and it is just and equitable not to make an order for adjudication.
Adjournment Application
[24] Turning to consider the judgment debtor’s first argument under s 42
Insolvency Act 2006 seeking a further adjournment of this application, as noted above this is advanced on the basis that he has appealed the 18 February 2013 decision of Her Honour Justice Goddard lifting the stay, and this appeal is yet to be heard by the Court of Appeal.
[25] On this aspect, at the outset I need to say that in my view this appeal is misconceived and has no prospect of success. The earlier order of His Honour Justice Ronald Young staying this bankruptcy proceeding was clearly expressed to be purely for the purpose of awaiting a decision from the Court of Appeal on the judgment debtor’s appeal against the 11 April 2011 judgment of Her Honour Justice French establishing the underlying debt here. In fact that decision was given by the Court of Appeal over 4 months ago. As I have noted above, the appeal was heard by the Court of Appeal and dismissed on 31 October 2012. The judgment debtor’s subsequent application for leave to appeal that decision to the Supreme Court was declined on 19 February 2013. The grounds for the earlier stay order therefore were entirely exhausted.
[26] No other satisfactory reason was advanced by the judgment debtor in submissions to me for any further adjournment of this present application. The present bankruptcy application followed the original judgment of this Court against the judgment debtor nearly 2 years ago on 11 April 2011 and the service of the Bankruptcy Notice on him nearly 16 months ago on 28 November 2011. The judgment creditor’s application for a further adjournment of this matter is inappropriate here and is refused.
Debt Claimed by the Judgment Creditor is Not Due?
[27] As I have noted above, as best I can tell the principal argument advanced by the judgment debtor opposing any bankruptcy order is his claim that the original debt he was ordered to pay by Her Honour Justice French has effectively been paid in part and the balance is not due from him.
[28] On this, that original debt provided for in the judgment of Her Honour Justice French totalled $58,084.31. Of this amount $18,579.40 has been paid by Casino Properties Ltd. As to the balance, as I note at para [11] above, interest of $5,666.06 has been added together with costs and disbursements totalling $34,420.30.
[29] Addressing his argument that the $58,084.31 debt is not due from him, before me the judgment debtor said he relied upon a judgment I gave in this Court on 7
September 2011 in other proceedings (involving Casino Properties Limited and the liquidators of Vision Limited in liquidation) (the Casino judgment).
[30] The judgment debtor contends that this 7 September 2011 Casino judgment related to the same debt he was ordered to pay in the earlier judgment of Her Honour Justice French. His argument as I understand it is that my 7 September 2011 Casino judgment in some way suggests that the entire debt involved in that case (which was around $52,000.00) has been properly accounted for, in the sense that part of this sum being $18,579.40 was paid by Casino Properties Ltd on 20 September 2011 and the balance of $33,420.60 he claims was found not to be due.
[31] This, however, is an entire distortion of the decision I gave in the Casino
Properties matter in my 7 September 2011 Casino judgment.
[32] And indeed, the judgment debtor has already endeavoured to raise this same argument unsuccessfully before me in his earlier application to set-aside the Bankruptcy Notice issued against him in the present proceeding, an application which as noted at [3] above failed. That judgment of mine is dated 7 March 2012.
[33] The earlier Casino Properties decision of 7 September 2011 related to an application by that company to set-aside a statutory demand issued against it by the liquidators of Vision Limited. In that decision I allowed the application to set-aside
the statutory demand except as to a sum of $18,579.00, which Casino Properties subsequently paid to the liquidators.
[34] In my 7 March 2012 judgment dismissing the judgment debtor’s application to set-aside the present Bankruptcy Notice I stated:
[7] In that 7 September 2011 judgment (the Casino judgment) I noted at [23]
that the reasons I had outlined in the judgment might raise:
... a possible arguable dispute here that the respondent’s lease may have continued beyond 1 December 2009, and thus some amounts for rent and rates and other charges might have been due to the applicant (Casino Properties) and properly set off against the $52,000 payment
[8] I also noted in that judgment that the most favourable view of the evidence would see Vision Ltd owing Casino Properties Ltd, at most, $33,420.60 in the form of rental, rates and other costs for the property up to 1 March
2010. This amount was deducted from the $52,000 which had been transferred from Mr Rabson’s Family Trust Bank account to Casino Properties, leaving the balance noted above of $18,579.40 unaccounted for. Casino Properties has since paid this amount to liquidators.
[9] On 21 November 2011, the judgment creditors issued the bankruptcy notice in question here on the basis of the judgment against Mr Rabson personally. The judgment debt had been partly satisfied in the intervening period by the $18,579.00 payment from Casino Properties. This left a balance of
$68,699.21 still owing however. The present application seeks to have that bankruptcy notice set aside.
..........
[16] Mr Rabson’s cross claim involves a set-off of the judgment debt. As to whether Casino Properties is actually owed any money in the form of rental, I stated in my 7 September 2011 judgment only that:
...I am satisfied here, but only by a rather fine margin, that the applicant has shown that there is arguable a genuine and substantial dispute but only as to the $33.420.60 noted above.
[17] Refusing to set aside a statutory demand on the basis that there might be a genuine and substantial dispute as to rent owing is not the same as declaring that this amount, or any amount, is in fact owing. Mr Rabson seems to have endeavoured to rely on this judgment as conclusive evidence that such an amount is owing to Casino Properties. That is entirely unjustified.
[18] If Vision, and by extension the liquidators’ company Shephard Dunphy Limited, is indebted to Casino Properties for the amount stated, the liquidators personally cannot also be indebted to Mr Rabson for the same debt. In separate proceedings Mr Rabson, on behalf of Casino Properties, served a statutory demand on Shephard Dunphy Limited on 22 December
2011. The demand sought to recover the same debt but from the company. This clearly amounts to two separate claims against two separate entities for the same amount.
[19] Further, there is no evidence of an assignment of this claim to Mr Rabson in his personal capacity.
(emphasis added)
[35] I repeat that it is quite wrong for the judgment debtor here to claim that once the $18,579.40 amount specified in my 7 March 2012 judgment had been paid, that meant the entire debt claimed by the judgment creditors had been extinguished. Nor does he have any proper set-off here.
[36] The 7 September 2011 Casino judgment in the Casino Properties case stated specifically that it was only by a fine margin that there was a possible argument open to the applicant in that case that the $33,420.60 balance of the claim was disputed, and further that this was a dispute for which it was not appropriate to seek resolution in the Companies’ Court. This conclusion was far from accepting that the
$33,420.60 debt had been extinguished by the strongly disputed Casino Properties’
rent claim in that case.
[37] One other aspect is significant here. This is the fact that, even if there is something in the judgment debtor’s argument before me disputing his liability for the balance of the debt ordered to be paid in the judgment of Her Honour Justice French, the Bankruptcy Notice itself and the present application to this Court include significant claims for other amounts. These include legal costs and disbursements ordered against the judgment debtor in various Courts amounting to $34,420.20 together with a claim for interest on the original judgment. Even leaving aside the interest claim, the amount outstanding for Court ordered legal costs in the bankruptcy application itself totalled $34,420.20, and this figure has been further increased by additional costs and disbursements orders noted in the 28 February
2013 judgment of Her Honour Justice Goddard. None of these amounts have been paid by the judgment debtor, nor has he provided any explanation to me as to why this may be so.
[38] For all these reasons, I dismiss the judgment debtor’s contention here that the
debt claimed against him in the judgment creditor’s application is not due or payable.
Is Debtor Able to pay His Debts?
[39] Next, although there was no real evidence placed before me by the judgment debtor as to this aspect, I will turn now to consider s 37(b) Insolvency Act 2006, which allows the Court a discretion to refuse an order for adjudication if the judgment debtor is able to pay his debts.
[40] At the outset, I do need to repeat and emphasise that there is no substantiated evidence before me of any kind as to the financial position of the judgment debtor. He has provided no detailed affidavit or independent verification as to his assets or liabilities or as to his income or means.
[41] Instead, as best I can tell, the only sworn evidence before me as to the judgment debtor’s financial position is contained in his affidavit sworn 18 May 2012 in support of his opposition to the present application. In this affidavit he deposes without more:
6. That I am not impecunious. The assets that I have are tied up in relationship property litigation which issues are yet to be heard by the Court of Appeal. I have the ability to borrow monies against these assets if called upon to do so.
7. That these assets are variously valued at between $800,000 and $1.1 million.
8. That I am refusing to pay the monies alleged to be owed because I believe they are not in fact owed to the receivers at all.
[42] And, in addition, in oral submissions advanced by him personally to me at the hearing of this matter, the judgment creditor appeared to confirm the following:
(a) He acknowledges that he has been in his words “assessed as impecunious”, which seems to conflict somewhat with his claim at [41](6) above that “I am not impecunious”.
(b) He is currently in receipt of an unemployment benefit.
(c) As to his assets, he owns no property in his words “having been thrown out of my home at Christmas time”.
(d)He claims to have an interest in bonus bonds to a value of $14,000.00 which are held by this Court, being bonus bonds he said he purchased in the name of his daughter Ms Gallagher.
(e) The judgment debtor contends also that he holds a judgment of some
$1.3 million in his favour against the Malcolm Rabson Family Trust but, as I understand it, he suggested this was probably irrecoverable. No further explanation regarding this alleged judgment was provided to the Court, however.
(f) Next, he said he had further assets totalling some $1.9 million representing the right that he and associated entities held to improvements to this value on a property which he did not identify. It may be that this property has been the subject of a mortgagee sale or some other form of creditor action. But, again no further detailed explanation of this claim was provided to the Court.
(g)On the question of his liabilities, initially the judgment creditor informed the Court that, other than the debt claimed in the present application, he had no other liabilities owing.
(h)In response to questions from the bench however, the judgment debtor in his own words stated that the Commissioner of Inland Revenue contends that he Mr Rabson “owes tens of thousands of dollars in Child Support payments”. He said however that this was disputed.
(i)Next, the judgment debtor said his only other liability, which related to his earlier relationship property proceedings, was a claim for legal fees by the legal representatives who were acting on his behalf in those proceedings amounting to approximately $500,000.00. The legal representatives in question have apparently issued proceedings
in this Court against the judgment debtor for this sum, but as I
understand it, he also disputes his liability for this amount.
[43] Finally, in response to further questions from the bench, the judgment debtor as best I can recall stated “Yes, I can pay the debt owing to the judgment creditors. I have the liquidity to pay it, although I say the debt is not due as it has already been accounted for.”
[44] As to this question of the ability of a debtor to pay his debts, it is clear from the authorities that this relates to ability to pay within a reasonable time. On this Brookers Insolvency Law & Practice at para IN37.01 states:
IN37.01 Ability of the debtor to pay debts
(1) Ability to pay within a reasonable time
(a) General
The Court is required to consider whether the debtor is “able to pay his or her debts”. This may require considerations of solvency at the date of the hearing or the probability of full payment over a period. It does not require consideration of the willingness of the debtor to meet the debt but it does require an ability to meet debts over time: Re Stirling, ex p Webb Ross & Co [1990] 1 NZLR 569; Re Plimmerton Courtyard Ltd ex p Franklin 2/7/09, Associate Judge Gendall, HC Wellington CIV-2008-485-2613. It also requires consideration of the interests of creditors in being out of their money for what, in some cases, are considerable periods: Re Fidow [1989] 2 NZLR 431. It is the essence of bankruptcy proceedings that they be brought to finality within a reasonable period: Re Guest, ex p BNZ Finance Ltd [1991] 2 NZLR 477, 479;
[45] In the present case there is no substantiated or independent evidence of any kind before the Court of the judgment debtor’s financial position. The matters I have noted above at [42] are confusing and have simply come from unsworn submissions advanced to the Court at the hearing by the judgment debtor. On their face in my view they, together with the judgment debtor’s bald claims in his 18 May 2012 affidavit noted at [41] above, cannot satisfy the Court that the judgment debtor is solvent and able to pay his debts within a reasonable time.
[46] But if I may be wrong on that aspect, the possibility always exists that the judgment debtor following adjudication might with assistance find himself in a position to make arrangements to clear his debts from unspecified sources and thus have his bankruptcy annulled under s 309(1)(b) Insolvency Act 2006.
[47] On this I refer to the decisions in Commissioner of Inland Revenue v Kaimai Palms Golf Resort Limited HC, Rotorua, 28 September 2010, CIV-2009-463-541, Associate Judge Faire (relating to a company liquidation) and FM Custodians Limited v E Serepisos HC, Wellington, 26 September 2011, CIV-2011-485-279, Associate Judge Gendall (relating to a bankruptcy adjudication) where similar considerations were applied.
[48] But I must conclude here, as I note at [45] above, that there is nothing of substance before the Court to show the judgment debtor is solvent and able to meet his debts within a reasonable time, and thus s 37(b) does not assist him.
Is it Just and Equitable that the Court does not make an order for
Adjudication?
[49] Again, although at the hearing of this matter before me, there were no submissions of substance advanced to me by the judgment debtor on this s 37(c) Insolvency Act 2006 aspect, I will also for the sake of completeness turn to consider this ground of defence.
[50] It is clear from McHardy v Wilkins & Davies Marinas Limited (in rec), 7
April 1993, Court of Appeal 54/93, that the onus of satisfying the Court either that it is just and equitable not to make an order of adjudication, or that for other sufficient cause no order ought to be made, is on the debtor. (On this aspect, see Brookers Insolvency Law & Practice para IN37.09(4)).
[51] In my judgment, the judgment debtor under all the circumstances prevailing in this case clearly has not satisfied the onus on him of showing the Court that it is just and equitable that an order for adjudication should not be made.
[52] As I have noted above, this whole matter has a long and drawn-out history and the judgment debtor has had ample opportunity to put before the Court a complete picture of his financial position to show why an order for adjudication should not be made.
[53] As I have noted above, there has been no verified evidence of any kind placed before the Court by the judgment debtor here to establish his asset and liability position. And the submissions he did advance to the Court personally at the hearing of this matter as to his financial position (outlined at [42] above) conflicted in a number of material ways with statements in his 18 May 2012 affidavit, and were entirely uncorroborated.
[54] All this is rather confusing and quite unsatisfactory. As occurred in the decisions in this Court in Re Buckley ex p Carter Holt Harvey Limited HC Hamilton,
11 October 1995, Master Ann Gambrill, B111/95, and in McHardy v Wilkins & Davies Marinas Limited (in receivership) 7 April 1993, CA54/93 the interests of the judgment creditor and the wider public interest in my view suggest that an investigation of these matters is appropriate here.
[55] I conclude that there is no proper basis in this case for declining the order for adjudication sought on the just and equitable ground.
Conclusion
[56] For all the reasons outlined above it will be apparent that the judgment
creditor’s application before me succeeds.
[57] Orders are now made as follows:
(a) An order is made adjudicating the judgment debtor Malcolm Edward
Rabson bankrupt.
(b)Costs are awarded to the judgment creditor on this application on a category 2B basis together with disbursements as fixed by the Registrar.
(c) This order is timed at 3.30 pm today 18 March 2013.
‘Associate Judge D.I. Gendall’
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