Robinson v Pigou - [2016] NZHC 2381

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-896 [2016] NZHC 2381

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of EVAN GORDON ROBINSON

BETWEEN

EVAN GORDON ROBINSON Judgment Creditor

AND

BABYLOU JOSE PIGOU Judgment Debtor

Hearing: 3 October 2016

Appearances:

S H Barter for the Creditor
N King for the Debtor

Judgment:

3 October 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

Sinisa Law, Otahuhu, Auckland, for Judgment Debtor, in support
Barter Law (S Barter/L M Herbke), Albany, Auckland, for Judgment Creditor, to oppose

Counsel:
Noel King, Barrister, Auckland

ROBINSON v PIGOU [2016] NZHC 2381 [3 October 2016]

[1] Ms Pigou applies to set aside a bankruptcy notice. Applications to set aside bankruptcy notices may be heard in chambers or in court. Counsel agreed that this application should be heard in chambers and I have heard it accordingly. The effect of that is that any challenge to this decision will be by way of review to a Justice of this court, rather than appeal to the Court of Appeal.1

[2] The bankruptcy notice is dated 3 May 2016. It is based on a final judgment of the District Court at Dargaville of 18 March 2008 for $42,171.25. The bankruptcy notice says that the amount outstanding under the judgment is $20,964.72. There is a schedule to the notice showing a calculation to derive that figure. Ms Pigou has made payments totalling $31,000 in reduction of the principal amount of the judgment. The schedule also shows a calculation of interest running from 18 March
2008 taking into account the reductions in principal. The interest figure claimed is

$9,823.47 as at 25 June 2013. That is the date of the last payment by Ms Pigou. The principal outstanding at 25 June 2013 was $11,141.25. The principal and the interest
sum together come to $20,964.72.

[3]
Paragraph 3 of the bankruptcy notice says:

The judgment creditor also claims interest on the sum of $11,141.25 being

the outstanding principal on the original judgment sum of $42,171.24 as per

attached Schedule of Payments and Interest at the rate of five per cent per annum being $46.42 per month from the 25th June 2013 until the date of

payment.

[4]

There are some irregularities in that part of the bankruptcy notice.

A

bankruptcy notice is required to state the amount of the judgment that is due at the date of the notice. Paragraph 3 states a formula, rather than an amount. It also claims payments that are to fall due under the judgment, rather than sums that are already due. That is because it seeks interest until the date of payment, which may be after the notice. A better course for a creditor is to calculate interest on the
judgment up until the date of the request to issue the bankruptcy notice, and to

1 Balzat v Zhang HC Auckland CIV-2008-404-6062, 22 September 2009, and Sharma v Wati
[2012] NZCA 195, (2012) 21 PRNZ 161.

include the…

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.

Continue reading Robinson v Pigou

Details

AGLC: Robinson v Pigou [2016] NZHC 2381
Case: [2016] NZHC 2381
Decision Date: 3 October 2016

CaseChat Overview and Summary

Babylou Jose Pigou applied to set aside a bankruptcy notice issued by Evan Gordon Robinson, who is a judgment creditor. The bankruptcy notice was based on a final judgment entered in the District Court at Dargaville for $42,171.25. The court heard the matter in chambers and was required to determine whether the bankruptcy notice was valid and if it could be amended. The first issue was whether the bankruptcy notice was irregular because it stated a formula for interest rather than an actual amount. The second issue was whether the bankruptcy notice should be set aside because Mr Robinson received a payment of $15,000 from a claim made against the liquidator of Dermacare Ltd, and whether part of the interest claimed was statute-barred.

The court held that the bankruptcy notice was irregular but could be amended to allow the debtor to comply with the notice. The court also held that Mr Robinson had not benefited at the expense of Ms Pigou in receiving the $15,000 payment. The court further held that part of the interest claimed was statute-barred because the Limitation Act 1950 applied to actions or causes of action based on acts or omissions before 1 January 2011, and no arrears of interest in respect of any judgment debt shall be recovered after six years from the date on which the interest became due. The court allowed the bankruptcy notice to be amended to $16,380.29, and adjourned the application to give Ms Pigou the opportunity to comply with the bankruptcy notice as amended. If she complies with the bankruptcy notice, she will not commit an act of bankruptcy and the application will be disposed of accordingly. If she does not comply with the notice, as amended, by Thursday 13 October 2016 at 5:00pm, she will have committed an act of bankruptcy and the court will dismiss the application at the hearing on 14 October.

The final orders of the court were that the amount stated in the bankruptcy notice is to be amended to $16,380.29, and the application was adjourned to Friday 14 October 2016 at 10:00am. The purpose of the adjournment was to give Ms Pigou the opportunity to comply with the bankruptcy notice as amended. If she complies with the bankruptcy notice, she will not commit an act of bankruptcy and the application will be disposed of accordingly. If she does not comply with the notice, as amended, by Thursday 13 October 2016 at 5:00pm, she will have committed an act of bankruptcy and the court will dismiss the application at the hearing on 14 October. The court will also deal with costs at the hearing on 14 October.

Orders