Re Tootell, ex parte Rabobank Australia Ltd

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2013-454-000065 [2013] NZHC 2975

BETWEEN  RABOBANK AUSTRALIA LIMITED Judgment Creditor

ANDROBERT JOHN TOOTELL Judgment Debtor

Hearing:                   31 October 2013

Appearances:           P Drummond for Judgment Creditor

J W Maassen for Judgment Debtor

Judgment:                12 November 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to application for adjudication order

Introduction

[1]      The creditor (Rabobank) obtained judgment against the debtor (Mr Tootell) in August 2012 for over AUD$6,200,000 (all reference to sums in this judgment will be to Australian currency unless otherwise noted).  The debt remains unsatisfied after Mr Tootell failed to meet the requirements of a bankruptcy notice.

[2]      Mr Tootell opposes adjudication.   He accepts that the requirements for an order of adjudication under s 36 (and s 13) Insolvency Act 2006 are made out.  He says, however, that in this a case, under s 37 of the Act, the Court should in its discretion refuse to adjudicate him bankrupt.

[3]      Mr Tootell’s grounds of opposition raise two main issues for determination

by the Court:

RABOBANK AUSTRALIA LIMITED v TOOTELL [2013] NZHC 2975 [12 November 2013]

Mr  Tootell  has  so  few  personal  assets  that  bankruptcy  would  be pointless; and

An order of adjudication would be premature.

[4]      Those  are  the  main  issues.    There  are  other  circumstances  that  might contribute to a finding that it would be unjust or inequitable to make an order of adjudication and I will deal also with those.

[5]      Mr Maassen, for Mr Tootell submits, as an alternative to making a final determination on the adjudication application, that this would be an appropriate case in which to order under s 38 of the Act that the application be halted for a period.

General approach to adjudication

[6]      The general principles which I adopt in relation to an adjudication application are these:

The  creditor  has  the  onus  of  establishing  the  allegations  in  its

application;

The Court may in its discretion refuse to adjudicate a debtor bankrupt (notwithstanding the jurisdiction is established) if it is just and equitable not to make an order or there is any other sufficient reason

not to make an order (see s 37(c)–(d) of the Act);

The debtor has the onus of satisfying the Court that either it is just and equitable or that some other sufficient reason exists for the Court’s not

making an order of adjudication; and

The Court is not to refuse an order of adjudication on the grounds of expediency or convenience.

Considerations affecting the discretion under s 37 of the Act

[7]      A helpful list of factors relevant to the exercise of discretion under s 37 of the Act was provided by Master Williams QC in Re Epirosa ex parte Diners Club (NZ) Limited  & American  Express  International  Inc.1      Counsel  invited  me to  accept Master Williams’s formulation of factors as a helpful reference point in this case, which I do.2

[8]      Factors relevant to the exercise of the discretion include:

What are the wishes of all affected parties, including the…

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Case
[2013] NZHC 2975
Decision Date

CaseChat Overview and Summary

In the case of Rabobank Australia Limited v Tootell, the High Court of New Zealand was asked to decide whether to grant an application for an adjudication order against Mr Tootell, who was in debt to Rabobank. The court was required to consider whether it was just and equitable to make an order of adjudication or if there were any other sufficient reasons not to make an order. Mr Tootell argued that the adjudication would be pointless as he had few personal assets and that the order would be premature as there was a prospect that the debt could be met by funds available through the liquidation of Skerrett, a company in which he had an interest. The court found that the argument that the adjudication would be pointless was not of substantial assistance to Mr Tootell due to the suspicious timing of a relationship property agreement executed by Mr and Mrs Tootell. The court also found that the argument that the adjudication would be premature was not supported by sufficient evidence to satisfy the court that there was any prospect that the debt would be fully extinguished within a reasonable period by a successful outcome to the Skerrett receivership. The court ultimately found that it was just and equitable to make an order of adjudication against Mr Tootell. The debtor is adjudicated bankrupt, and the debtor is to pay to the creditor the costs of the creditor's application on a 2B basis together with disbursements to be fixed by the Registrar.

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