Robt Jones 151 Limited v Henry - [2023] NZHC 280

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001284

[2023] NZHC 280

BETWEEN
ROBT JONES 151 LIMITED

Judgment Creditor

AND

DAVID RYAN HENRY

Judgment Debtor

Hearing: (On the papers)

Appearances:

K Francis for Judgment Creditor B Henry for Judgment Debtor

Judgment:

23 February 2023

JUDGMENT OF VENNING J

Application for leave to appeal

This judgment was delivered by me on 23 February 2023 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Lindsay & Francis, Auckland
Shanahans Law Limited, Auckland

Counsel: B Henry, Auckland

ROBT JONES 151 LIMITED v HENRY [2023] NZHC 280 [23 February 2023]

[1] David Henry faces a bankruptcy petition in this Court which is scheduled for a defended hearing on 7 March 2023 at 10.00 am.

[2] When the petition was last before the Court on 8 December 2022 the Court dismissed Mr Henry’s application for particular discovery in the course of those proceedings.1 Mr Henry now seeks leave to appeal the Court’s decision to dismiss the application for particular discovery.

Background

[3] On 23 May 2022 judgment was entered by consent against Mr Henry in favour of Robt Jones 151 Limited (Robt Jones) in the sum of $283,909.14 together with interest and costs.

[4] Robt Jones subsequently issued and served a bankruptcy notice on Mr Henry. The notice expired unremedied. Robt Jones then issued a bankruptcy petition on 28 September 2022. The petition was first called before the Court on 17 November 2022. On that day the Court adjourned the petition to 8 December 2022 to permit the debtor to file a notice of opposition and affidavit.

[5]Mr Henry’s counsel then filed the following documents:2

(a)notice of intention to oppose the creditors’ application and seek a halt on the application dated 5 December 2022;

(b)without notice application to suppress the name of the judgment debtor and the contents of the evidence filed in the proceeding dated 6 December 2022; and

(c)an application for particular discovery which was filed on 7 December 2022.

1 Minute of Venning J, dated 8 December 2022.
2 The references to Mr Henry are to the judgment debtor. As Mr Henry is represented by B Henry I refer to B Henry as counsel to avoid confusion.

[6] When the matter was called in the bankruptcy list on 8 December 2022 the Court indicated to counsel for Mr Henry that, having considered the application for discovery, the Court was not minded to grant discovery. Counsel requested a ruling which the Court subsequently delivered in a minute/directions issued on the same day. As the decision to decline the application for particular discovery was a decision made on an interlocutory application, Mr Henry requires leave of the Court to appeal to the Court of Appeal from that decision.3

Hearing – on the papers

[7] Although a teleconference was convened to deal with the application, at the outset of the conference counsel for Mr Henry advised he…

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 280
Decision Date: 23 February 2023

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application for leave to appeal from David Ryan Henry, the judgment debtor, against the dismissal of his application for particular discovery in bankruptcy proceedings. Robt Jones 151 Limited, the judgment creditor, had issued a bankruptcy petition against Mr Henry after a consent judgment was entered in their favour. The petition was scheduled for a defended hearing, and Mr Henry sought to appeal the dismissal of his application for particular discovery. The Court assessed the application on the papers, considering the principles for granting leave to appeal as established in relevant case law. The Court found that Mr Henry's application did not meet the high threshold for leave to appeal as it sought to collaterally challenge a consent judgment through discovery. The Court held that any challenge to the judgment should have been raised during the substantive proceedings and that discovery was not appropriate in this context. The interests of justice did not support the grant of leave, and the application was dismissed with costs awarded to the judgment creditor.

The legal issues before the Court were whether the dismissal of the application for particular discovery warranted leave to appeal and whether the principles for granting leave to appeal were satisfied. The Court examined the circumstances under which discovery might be ordered in bankruptcy proceedings and determined that the application was effectively an attempt to collaterally challenge the consent judgment. The Court concluded that the application for leave to appeal should be dismissed, as it did not identify an arguable error of law or fact of general or public importance, and the interests of justice did not support the grant of leave. The Court emphasized the importance of finality in litigation and the inappropriateness of collateral attacks on judgments, particularly consent judgments.

Orders