Robertson Bixley Ltd v Jolly - [2023] NZHC 286

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…

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: [2023] NZHC 286
Decision Date: 27 February 2023

CaseChat Overview and Summary

The High Court heard an application by Lisa Jolly to set aside a bankruptcy notice served on her by Robertson Bixley Limited. The key issue was whether the bankruptcy notice should be set aside because the District Court had ordered that the judgment debt be paid by instalments. Mrs Jolly argued that the bankruptcy notice was defective as it did not attach a certified sealed copy of the certificate of judgment. She also raised various other grounds for setting aside the notice, including that Robertson Bixley had returned payments she had made and had not responded to her payment proposals. The Court found that the bankruptcy notice was not defective and that Mrs Jolly's counterclaims had already been rejected by the District Court. The Court also found that there was no implied stay of the bankruptcy proceedings because Robertson Bixley had not been given an opportunity to be heard on Mrs Jolly's proposal to pay by instalments. The application to set aside the bankruptcy notice was dismissed. If the judgment sum remains unpaid, Mrs Jolly will have committed an act of bankruptcy. Robertson Bixley is entitled to its costs.

Orders