Robertson Bixley Ltd v Jolly
[2023] NZHC 286
•27 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001317
[2022] NZHC 286
BETWEEN ROBERTSON BIXLEY LIMITED
Judgment Creditor
AND
LISA JOLLY
Judgment Debtor
Hearing: 1 February 2023 Appearances:
M W Swan for the Judgment Creditor Judgment Debtor in Person
Judgment:
27 February 2023
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 27 February 2023 at 12.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
Hucker & Associates, Auckland
ROBERTSON BIXLEY LTD v JOLLY [2022] NZHC 286 [27 February 2023]
Introduction
[1] Lisa Jolly, the judgment debtor, applies to set aside a bankruptcy notice served on her by Robertson Bixley Limited, the judgment creditor, on 13 August 2022. Alternatively, she asks that the bankruptcy proceedings are stayed.
[2] The main issue is whether the bankruptcy notice should be set aside because the Deputy Registrar of the District Court in Wellington ordered that the judgment debt be paid by instalments pursuant to s 153 of the District Court Act 2016.
Background
[3] His Honour Judge J Bergseng issued a judgment in the District Court dated 26 April 2022 against Mrs Jolly in favour of Robertson Bixley.1 The amount of costs following this substantive judgment was fixed by Judge Bergseng on 17 May 2022.2 An order in respect of this judgment was sealed by the District Court on 31 May 2022.3
[4] No steps have been taken by Mrs Jolly to apply to recall or appeal the District Court decision nor stay its execution or enforcement.
[5] A bankruptcy notice was issued against Mrs Jolly on 11 August 2022.4 The bankruptcy notice was personally served on Mrs Jolly on 13 August 2022.5
[6] On 26 August 2022, Mrs Jolly applied for an order setting aside the bankruptcy notice.6 The grounds of the application are:
(a)The bankruptcy notice is defective as it does not attach a certified sealed copy of the certificate of judgment from the District Court.
1 Robertson Bixley Ltd v Jolly [2022] NZDC 6450.
2 Robertson v Bixley Ltd v Jolly [2022] NZDC 8436.
3 Robertson Bixley Ltd v Jolly DC Papakura CIV-2020-055-000594, 31 May 2022 (Order of the Court).
4 Bankruptcy Notice, 11 August 2022.
5 Affidavit of service of Aaron Desmond Sewell sworn 18 August 2022.
6 Application to set aside bankruptcy notice, 26 August 2022.
(b)Mrs Jolly has a counterclaim against Robertson Bixley for storage costs.
(c)Mrs Jolly is being pursued for a debt she personally guaranteed without the company being pursued in the first instance.
(d)Robertson Bixley has continued to return payments she has made towards the debt.
(e)Robertson Bixley has not responded to payment proposals she has put to it.
(f)Mrs Jolly has entered into a payment plan in respect of the debt.
Legal principles – setting aside a bankruptcy notice
[7] Section 17 of the Insolvency Act 2006 (the Act) provides that a debtor commits an act of bankruptcy when they fail to comply with the requirements of a bankruptcy notice served on them by a creditor within 10 working days after the date of service of that notice (if served in New Zealand).
[8] Rule 24.10 of the High Court Rules 2016 extends the time for compliance until an application to set aside the bankruptcy notice has been determined, where a valid application has been made within the 10 working day limit.7
[9] To have the bankruptcy notice set aside, the debtor must satisfy the Court that they have a genuine, triable cross claim (a counterclaim, set-off or cross-demand) that is equal to or greater than the judgment debt or amount the debtor has been ordered to pay, and that could not have been used as a defence in the action in which the relevant judgment was given.8
7 High Court Rules 2016 at r 24.10 and sch 1(B2).
8 Insolvency Act 2006, s 17(7); and Clark v UDC Finance Ltd [1985] 2 NZLR 636 (HC) at 637.
[10] The Court of Appeal approved this test in Sharma v ANZ Banking Group (NZ) Ltd,9 and reaffirmed it in Robertson v ASB Bank Ltd,10 with a slight qualification stating that “the better approach is to consider objectively whether it can be said a genuine “triable” cross claim exists on the facts as they now stand”.11
[11]The Court in Robertson held:12
(a)the onus is on the debtor to show that they have a genuine triable cross claim;
(b)the debtor must show a genuine triable claim in terms of both liability and quantum;
(c)not only the existence of a cross claim must be established, but also that it is equal to or greater than the judgment debt, and could not have been used as a defence in the proceeding of which the judgment was entered;
(d)the summary nature of the procedure is wholly unsuitable for the determination of disputed questions of fact;
(e)the Court need not accept uncritically, evidence that is inherently lacking in credibility, for example where it is inconsistent with contemporary documents, or inherently improbable.
[12] The inability to use a counterclaim, set-off or cross-demand as a defence is primarily a legal inability.13 A factual inability may suffice, but will require careful scrutiny.14
9 Sharma v ANZ Banking Group (NZ) Ltd (1992) 6 PRNZ 386 at 389.
10 Robertson v ASB Bank Ltd [2014] NZCA 597 at [19].
11 Robertson v ASB Bank Ltd, above n 10 at [26-27].
12 Robertson v ASB Bank Ltd, above n 10 at [22] and [32].
13 Hardie v Booth [1992] 1 NZLR 356 at 361-362.
14 Hardie v Booth, above n 13 at 362.
[13] A judgment debtor whose defence has been rejected by the court, or who has failed to raise a defence which might have been available to them, cannot deploy the failure of that defence as a cross claim in opposition to a bankruptcy notice later issued by the judgment creditor.15 The right place for the debtor to raise the defence is by way of appeal against the judgment (or possibly, depending on the circumstances, by application for a re-hearing).16
[14] If the debtor relies on claims in the bankruptcy proceeding that are essentially the same as those that were rejected by the court in the proceeding on which the bankruptcy notice is based, res judicata and issue estoppel may arise.17
Is the bankruptcy notice defective?
[15] The bankruptcy notice is not defective, because it attached a certified copy of the sealed order of the District Court dated 31 May 2022.
[16] Section 29(1)(a) of the Act requires a bankruptcy notice to be in the prescribed form. The prescribed form required by r 24.8(3) of the High Court Rules 2016 is Form B2 which is contained in sch 1. Rule 24.8(3) requires that a certified copy of the judgment or order on which the bankruptcy notice is based must be attached to the notice.
[17] A certified copy of the sealed order of the District Court dated 31 May 2022 was produced in support of Robertson Bixley’s request to the High Court to issue a bankruptcy notice. The copy was certified as a true and correct copy of the original order by a practising barrister and solicitor authorised by law to take statutory declarations.18 It is not disputed that the certified copy of the sealed order of the District Court was attached to the bankruptcy notice served on Mrs Jolly.
15 Robert Osbourne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR24.10.03].
16 Aluminium Plus Wellington Ltd (in liq) v Shaw [2017] NZHC 2607 at [58].
17 Maori Trustee v Hill [2017] NZHC 2377 at [17], citing MinterEllisonRuddWatts v Hampton
[2017] NZHC 1715.
18 Oaths and Declarations Act 1957, s 9(1)(a).
[18] In any event, s 418 of the Act provides that proceedings under the Act cannot be invalidated or set aside because of any defect (including misdescription, misnomer, or omission) in a step that must be taken as part of, or in connection with, the proceeding, unless a person is prejudiced by the defect. This Court and the Court of Appeal have recognised that a failure to refer to or attach a certified copy of the underlying judgment is a defect that can be excused or rectified under s 418 (or its predecessor).19
[19] Mrs Jolly does not suggest that she has been prejudiced by some defect in the bankruptcy notice. The District Court judgment followed a defended hearing; and there can be no suggestion that she was unaware of the judgment on which the bankruptcy notice is based.
A genuine triable cross claim?
[20] Mrs Jolly contends that she has a counterclaim against Robertson Bixley for services rendered in Hong Kong, including providing storage space. At the hearing Mrs Jolly also referred to advertising, marketing and translation services.
[21] Mrs Jolly raised this counterclaim in the District Court proceeding that resulted in the judgment that underpins the bankruptcy notice. Judge Bergseng rejected the claim.20
[54] Regarding the contra deal, her evidence is that at some unidentified time she had a discussion with Mr Guy about the mutual benefit of them working together by her assisting NRG to become established in Hong Kong. She said she offered to help Store NRG’s product in her shop and storeroom, even though it took up a large proportion of her space. At the time her rent in Hong Kong was $10,000 per month. She said Mr Guy visited Hong Kong to move NRG’s product from her premises prior to her undertaking a move to new premises. Because she was assisting Mr Guy with NRG, she understood that she would be getting accounting services throughout the 2017 period in respect of all her businesses as part of a contra deal.
[55] Mrs Jolly acknowledged that the issue of the contra was, in her words, “grey and messy from the get-go”. She seems to accept some naivety on her part and was simply wanting the best outcome for everyone.
19 See Re Stocko Ltd, ex parte Denize HC Auckland CIV-2011-404-3557, 31 October 2011; Commissioner of Inland Revenue v Faloon [2016] NZHC 760, (2016) 27 NZTC 22-076 at [24]; Sharma v Wati [2012] NZCA 195, (2012) 21 PRNZ 161 and Ministry of Justice v McGuire [2018] NZHC 2475 at [8].
20 Robertson Bixley Ltd v Jolly, above n 1.
[56] She raised an invoice addressed to Rodney Guy, representative of NRG, on 28 May 2018 in the sum of $25,000. The invoice is for:
Storage and marketing liaison work in Hong Kong, as per Mr Rodney Guy’s request for NRG products.
Invoice and charges include storage for 4 months in Hong Kong for NRG pet food in the Honeybunch premises. Liaison and distribution and communication with logistics company, organising and maintaining SKUs for products. Work done by Mrs Wendy Wong on transactions for products and distribution of the products to pet shelters. Cost of GoGoVan and staff to distribute NRG products. Liaison and marketing in social media for NRG see emails on request.
Original agreement defaulted upon after receiving loaded charges not agreed upon by Mr Guy to myself therefore requires myself and my company to charge for services and rent for this period for NRG as requested by Mr Rodney Guy on behalf of NRG.
…
[76] Mrs Jolly counterclaims against Robertson Bixley in the sum of $28,500 comprising $25,000 in respect of an unpaid invoice and a further $3,500 for 13 appearances in Court that she has made.
[77] Robertson Bixley denies it is liable for the invoice and notes that being self-represented, Mrs Jolly is not entitled to claim costs. I agree.
[78] Mrs Jolly says that the costs she claims in invoice 1452 of $25,000 were originally not going to be the subject of any invoice, instead they were to be set-off against money that she owed Robertson Bixley for accounting work done throughout 2017.
[79] Mrs Jolly's evidence is that this was the agreement she entered into with Mr Guy. She is unable to give any specifics of this agreement, nor is she able to make any reference to any earlier discussions regarding any such contra arrangement.
[80] Mr Guy in his evidence accepted that there may have been some form of contra deal between his father, who was a director of NRG, and storage costs. He denies that there has ever been any contra arrangement between himself, on behalf of Robertson Bixley, and Mrs Jolly.
[81] Mrs Jolly effectively says that Mr Guy is being dishonest when he denies the existence of such a contra deal. This is despite her earlier acknowledgement that the issue of a contra was "grey and messy from the get- go."
[82] The evidence does not establish that any such contra arrangement ever existed between Mr Guy and/or Robertson Bixley and Mrs Jolly. There is no suggestion from Mrs Jolly that at any of the meetings throughout [2017], when the outstanding invoices were discussed between Mr Guy and Mrs Jolly, that there was ever any suggestion that the amount should be reduced pursuant to the "contra" arrangement. It is inexplicable, if such a contra arrangement existed, that on 11 May 2017 Mrs Jolly would write to Mr Guy and say:
Thanks all. Rodney has sent me through a detailed statement, and I am happy to have the amount of $23,886.11 deducted from the sale proceeds if you sell this for me.
[83] Mrs Jolly's invoice is dated 28 May 2018. It is addressed to Rodney Guy representative of NRG. By section 9 of the Evidence Act 2006 it was agreed that in August 2016 Mr Guy visited Hong Kong for about seven days. Further, it was agreed that Mr Guy was a director of NRG between 23 May 2017 and 31 March 20220.
[84] The purpose of Mr Guy's visit to Hong Kong was to arrange for the removal of NRG product being stored at Mrs Jolly's Hong Kong's premises. Accordingly, although the invoice is dated 28 May 2018 it is for work claimed to have been undertaken for NRG up to August 2016.
[85] I do not accept as credible Mrs Jolly’s evidence that there was any contra arrangement in respect of Robertson Bixley’s fees throughout 2017. Whether it is referred to as a counterclaim or a setoff, it is irrelevant for the purposes of these proceedings given it does not involve Robertson Bixley. It may be that was some form of arrangement between Mr Guy’s father and Mrs Jolly. Whether there was is not relevant to the issues in these proceedings. Mr Guy snr has nothing to do with Robertson Bixley and money Mrs Jolly owes for accounting services they have provided.
[22] Mrs Jolly acknowledges that the counterclaim she describes now is the same claim she raised in the District Court. She says the difference is that whereas in the District Court her evidence was that the arrangement giving rise to the counterclaim was between her and Mr Guy, she now says the arrangement was in substance with Robertson Bixley. Additionally, she claims for her disbursements associated with the various court appearances.
[23] Since the District Court judgment Mrs Jolly has served a statutory demand on Robertson Bixley for payment of an invoice for her counterclaim. Appended to the statutory demand for $29,265 is a copy of “invoice 1452” which details the monies claimed. They are $25,000 for storage in Hong Kong and $4,265 for disbursements relating to the District Court and High Court proceedings. Robertson Bixley has applied to have the statutory demand set aside on the basis that a court has already decided the issue.
[24] This Court is not able to set aside or stay a bankruptcy notice on the basis that the judgment debtor has a counterclaim against the judgment creditor if the counterclaim was raised as a defence in the proceeding that resulted in the judgment against the judgment debtor. That is the situation here. It is clear from Judge
Bergseng’s judgment that in the District Court Mrs Jolly advanced her claim for storage fees and Court-related disbursements, as set out in “invoice 1452”, as a counterclaim against Robertson Bixley (not Mr Guy). She seeks to raise the same counterclaim here. That counterclaim has already been made and rejected in the District Court.
[25] I understand Mrs Jolly to say that she now has better evidence of the arrangement and the nature of the services allegedly provided to Mr Guy/Robertson Bixley. If that is the case, the appropriate course is for her to apply for leave to appeal the District Court or for a rehearing because of fresh evidence.
Robertson Bixley has returned payments
[26] Mrs Jolly argues that the bankruptcy proceeding is an abuse of process because Robertson Bixley has continued to return payments she has tried to make, as a way of securing her bankruptcy. She says that if Robertson Bixley had received her payments, the debt would have been paid some time ago and legal fees avoided. She says that this Court acknowledged this fact in an earlier decision to set aside a bankruptcy notice served on her by Robertson Bixley.
[27] It seems that there were historic issues between the parties where Robertson Bixley returned some payment made by Mrs Jolly towards an earlier District Court judgment debt. That earlier judgment was set aside by consent when it became apparent that the judgment was overstated.21 As a result, an earlier bankruptcy notice based on that judgment and served by Robertson Bixley on Mrs Jolly, was set aside by consent.22
[28] Mrs Jolly has not proffered evidence to substantiate the claim that Robertson Bixley has returned payments in respect of the present District Court judgment sealed on 31 May 2022. I understood her to acknowledge at the hearing that the returned payments she referred to in her application to set aside were those made before that judgment.
21 Robertson Bixley Ltd v Jolly, above n 1 at [37]–[40].
22 Jolly v Robertson Bixley HC Auckland CIV-2019-404-25-24, 11 August 2020 (Minute of Associate Judge Smith).
[29] Accordingly, there is no basis for setting aside the bankruptcy notice because of returned payments.
The judgment creditor should pursue Mrs Jolly’s companies first
[30] I make no comment on the merits of this argument, as it is a defence that should have been raised by Mrs Jolly in the District Court. It is unclear whether she expressly did so, but in any event, Judge Bergseng commented as follows:23
[61] The terms of engagement clearly set out that Mrs Jolly personally guarantees payment of the invoices in respect of work undertaken for her various companies.
[62] Other than to deny liability, no evidence has been given by Mrs Jolly as to why she is not a guarantor of her companies’ obligations to Robertson Bixley.
[63] The evidence establishes that Mrs Jolly is personally liable in respect of work undertaken by Robertson Bixley in respect of her companies Soap Opera, Honeybunch and Honey Bunch NZ Limited.
There is a payment plan in respect of the debt
[31] The bankruptcy notice was issued on 11 August 2022 and served on Mrs Jolly on 13 August 2022.
[32] On 9 September 2022, a Deputy Registrar of the District Court in Wellington made an order for the judgment debt to be paid by instalments at the rate of $300 per week. Payments under this order were to commence on 23 September 2022. Neither Mrs Jolly nor Mr Swan for Robertson Bixley were able to provide a copy of the order, but there is no dispute that the order was made on these terms. Mr Swan says that the order was made pursuant to s 153 of the District Court Act 2016.
[33] Section 153 provides that after judgment has been entered or an order made for the payment of money, the Court may make an order that the money owing under the judgment be paid in instalments if:
(a)a financial statement is filed with the Court; or
23 Robertson Bixley Ltd v Jolly, above n 1 at [61]–[63].
(b)the judgment debtor provides the Court with information about the judgment debtor’s means for satisfying the judgment debt; and
(c)a financial assessment hearing takes place.
[34] In the present case, Mrs Jolly instigated the process by filing a financial statement with the District Court. Robertson Bixley maintains that it was not notified that a hearing was to be held, or that any orders were to be made. It has applied for a review and recission of the Deputy Registrar’s instalment order. No hearing date has been allocated for this review.
[35] Mrs Jolly asks that the bankruptcy notice be set aside or stayed until after that hearing has taken place and after the hearing of Robertson Bixley’s application to set aside her statutory demand.
[36] There is no formal court order staying execution of the District Court judgment. Robertson Bixley accepts that in some circumstances, the existence of an instalment order or arrangement in the District Court may operate as an implied stay of a bankruptcy proceeding.
[37]The leading decision on implied stays on this basis is Telkie v Williamson.24 In
Telkie Master Venning (as he then was) opined:25
Although there appears to be no direct authority on the point, I find that where a judgment debtor is making payment of a judgment debt by instalments pursuant to an order under s 84E of the District Courts Act then that amounts to an implied stay of proceedings for the purposes of s 19(l)(d) of the Insolvency Act. A judgment creditor is not entitled to issue a bankruptcy notice whilst the instalments continue to be made in accordance with such an order.
[38] However, Robertson Bixley differentiates this situation because Mrs Jolly is not making payments in accordance with the order and is therefore in default. Mr Swan submits that the mere existence of an order for payment of the judgment debt
24 Telkie v Williamson (1996) 9 PRNZ 658.
25 Telkie v Williamson above n 24, at 661.
by instalments does not operate as a stay when the judgment debtor is not abiding the terms of the instalment order.
[39] In an updating affidavit sworn on 31 January 2023, Mr Guy provides a statement accounting for payments Robertson Bixley has received from Mrs Jolly following the entry of judgment against her in May 2022. Against an opening balance of $17,587.39 on 1 April 2022, Mrs Jolly made two payments of $200 each on 7 and 14 June 2022. The next payment, made on 21 November 2022, is for $60.01. There are then a series of payments through November and December 2022, sometimes daily payments of $60 and occasionally a payment of $300. Payments cease on 21 December 2022. Mrs Jolly explains that she stopped making the payments then because Robertson Bixley had applied to overturn the Deputy Registrar’s orders.
[40] By my calculations, had Mrs Jolly paid in accordance with the payment plan, over the course of the 18 weeks from 23 September 2022, she would have paid $5,400. As it stands, she has paid a total of $3,101, leaving a balance of $14,486.39.
[41] I do not consider that an implied stay arises in this case, for two reasons. First, as Master Venning (as he then was) said in Telkie v Williamson:26
The rationale for the implied stay is that the creditor is deemed to have agreed with the debtor to accept payments of the judgment debt by instalment, and not enforce his or her rights to execute the judgment whilst those payments are made. Their rights to execution are suspended while the agreement is in force: Debtor ex p Debtor.27
[42] In that case, the order for payment by instalments was made under the predecessor to s 153 of the District Court Act 2016, s 84E of the District Courts Act 1947. That section provided that upon completion of an examination of the debtor under s 84B of the District Courts Act 1947, the Court may after giving the judgment creditor and judgment debtor an opportunity to be heard, make an order for judgment to be paid by instalments. In that case the judgment creditor had applied for the examination.
26 Telkie v Williamson above n 24, at 661.
27 Debtor ex p Debtor [1908] 1 KB 344.
[43] In the passage from Telkie v Williamson quoted above, Master Venning continued:28
The instalment orders are only made after the judgment creditor and judgment debtor have an opportunity to be heard. If a judgment creditor does not wish to be prevented from exercising his rights to pursue bankruptcy proceedings he or she could ask that an instalment order not be made at the conclusion of the examination. In that case the examination process would simply be used to ascertain the debtor's financial situation. If the debt could realistically be paid over a short period of time by instalments the creditor may decide to seek an order for payment by instalments but if, on the other hand, it was apparent at the conclusion of the examination the debt could not realistically be paid over a short period of time then the judgment creditor might decide to pursue bankruptcy proceedings. In such event the creditor should advise the Registrar of that and no order would be made. If a Registrar made an order for payment by instalments but the creditor wished to pursue bankruptcy proceedings then s 84N provides the creditor may seek a review of the Registrar's decision by a District Court Judge. The judgment creditor has those rights, even if it is the judgment debtor that has applied for examination with a view to obtaining an order that the debt be paid by instalments.
[44] In contrast, Robertson Bixley does not appear to have been given the opportunity to be heard on Mrs Jolly’s proposal to pay the judgment debt by instalments. I note that s 153 of the District Court Act 2016 explicitly states that the District Court may make an order for a judgment to be paid by instalments even if no hearing takes place, or, where a financial statement is filed in the Court by one party, the other party has not had an opportunity to make representation to the Court about the financial statement.
[45] Mr Guy has deposed that he has not been served with, nor have his solicitors been served with, any application to the District Court by Mrs Jolly in respect of the judgment debt. Robertson Bixley’s solicitors have put in evidence file notes of their conversations with Mr Guy and Robertson Bixley’s former solicitor, in which they state that neither of them received any notice that a financial examination of Mrs Jolly was to take place, or that a Deputy Registrar was going to make an order based on Mrs Jolly’s financial position. This is hearsay evidence but, in these circumstances, I will allow it.
28 Telkie v Williamson above n 24, at 661.
[46] On the basis that Robertson Bixley was not heard on Mrs Jolly’s application to pay by instalments of $300 per week, I do not consider that it can be deemed to have agreed to accept these payments and not to enforce its rights to execute the judgment by way of bankruptcy proceedings.
[47] I have considered whether by receiving, and not returning the daily and monthly payments made by Mrs Jolly from 21 November 2022, Robertson Bixley is deemed to have agreed to the arrangement. I find that it has not, because it applied promptly, by way of interlocutory application dated 20 September 2022, to review the Registrar’s decision. Further, it is perhaps understandable that it has not returned the payments, as Mrs Jolly has objected to this previously.
[48] The second distinguishing factor is that Mrs Jolly has not strictly complied with the terms of the order. While the cumulative total of her payments is not insignificant, she did not begin making payments until nearly two months after the date ordered, she paid in different amounts, and she stopped making payments on 21 December 2022.
Judgment creditor not responded to payment proposals
[49] Mrs Jolly says that she has repeatedly asked Robertson Bixley and their counsel for a reconciliation of the amounts she has paid, and the sum said still owing, and no such reconciliation has been provided to her. Furthermore, she says through July and August 2022 she made numerous attempts to settle the debt, including offering to pay $800 a week, increasing to $1,000 a week, with a further review in January 2023. These emails are in evidence.
[50] Robertson Bixley acknowledges that Mrs Jolly has requested reconciliations, but says they are not obliged to continue to provide regular reconciliations. As for the settlement offers, Mr Guy deposes that the latest offers received from Mrs Jolly are not acceptable to him.
[51] Mr Guy is entitled to reject Mrs Jolly’s offer to pay by instalments. As for reconciliation, it would have been a simple thing for Mrs Jolly to calculate, with reference to the sealed judgment and order for costs and bankruptcy notice, and her
own bank statements, the amount she has paid since 2022, and therefore the balance remaining. Further, I note in his affidavit dated 6 September 2022 that Mr Guy provides a statement of account accounting for the payments received from Mrs Jolly following the entry of judgment against her.
[52] Finally, Mrs Jolly objects to the legal costs included in the bankruptcy notice. These legal costs related to the District Court proceeding against her and she was ordered to pay them to Robertson Bixley in a sealed order of that court.29 Robertson Bixley is able to demand that she pay those costs as part of the bankruptcy notice.
Result
[53] Mrs Jolly’s application to set aside, or for a stay, of the bankruptcy notice served on her by Robertson Bixley is dismissed.
[54] If the judgment sum remains unpaid at the end of today, Mrs Jolly will have committed an act of bankruptcy entitling Robertson Bixley to file proceedings to have her adjudicated bankrupt.
[55] In terms of costs, as the successful party Robertson Bixley are entitled to their costs on a category 2B basis, and reasonable disbursements. They should file a memorandum with the Court.
Observation
[56] At the hearing I urged Mrs Jolly to engage legal counsel to advise her on her best course of action. She has indicated that she wants to resolve matters with Robertson Bixley. I repeat my recommendation that she engages a lawyer to advise her on her statutory demand proceeding, any bankruptcy proceeding that ensues and to negotiate a resolution with Robertson Bixley, if that is what she wants to do.
Associate Judge Gardiner
29 Robertson Bixley Ltd v Jolly DC Papakura CIV-2020-055-000594, 31 May 2022 (Order of the Court).
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