Ross v Duncan Cotterill

[2012] NZHC 282

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2011-406-000096 [2012] NZHC 282

UNDER  the Insolvency Act 2006

IN THE MATTER OF     an application to annul adjudication

BETWEEN  JAMES REGINALD DAVID ROSS Applicant

ANDDUNCAN COTTERILL Respondent

Hearing:         21 February 2012

Appearances: Mr J Ross In Person

S Galbreath for Respondent

Judgment:      22 February 2012

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      Mr Ross has applied to annul an order adjudicating him bankrupt, made on

4 October 2011.

[2]      Section 309 of the Insolvency Act 2006 sets out the circumstances in which a

Court may annul an adjudication.  Subsection (1) provides:

309    Court may annul adjudication

(1)     The Court may, on the application of the Assignee or any person interested, annul the adjudication if—

(a)  the Court considers that the bankrupt should not have been adjudicated bankrupt; or

(b)   the Court is satisfied that the bankrupt's debts have been fully paid or satisfied and that the Assignee's fees and costs incurred in the bankruptcy have been paid; or

JAMES REGINALD DAVID ROSS V DUNCAN COTTERILL HC BLE CIV-2011-406-000096 22 February

2012

(c)   the Court considers that the liability of the bankrupt to pay his or her debts should be revived because there has been a substantial change in the bankrupt's financial circumstances since the date of adjudication; or

(d)   the Court has approved a composition under subpart 1 of Part 5.

[3]      Mr Ross appeared in person.   He argued that the debt is disputed, and has been disputed throughout.   He pointed out that part of the initial fee account by Duncan Cotterill has been paid in full and the balance claimed represents the part in dispute.  He submitted that he had tried to sit down with the firm and talk about the dispute, and that it could or should have gone to the Disputes Tribunal for adjudication.  When asked why he did not respond to either the bankruptcy notice or the application for bankruptcy, his response that when under attack, the best way to handle it is not to engage.

[4]      The dispute Mr Ross believes he has with the respondent over its claim to fees has already been the subject of consideration by the Law Society, and a claim by the firm in the Disputes Tribunal.  The Disputes Tribunal found against Mr Ross. He appealed to the District Court at Blenheim.   The appeal was dismissed.   A bankruptcy notice was issued on the basis of the District Court judgment, and served. No application was made to set it aside.  The bankruptcy application was served and again no steps were taken.

[5]      A report by the Official Assignee has been filed in the court.  It discloses that there are outstanding debts (including the debt to the respondent) of $26,776.21. The Official Assignee has outstanding fees and costs.

[6]      It follows that the applicant cannot rely on paragraph (b) of subsection (1) of s  309.    There  was  no  evidence  laying  a  foundation  for  the  ground  set  out  in paragraph (c), and the ground in paragraph (d) is not applicable.

[7]      It is therefore necessary for the Court to determine whether it considers that the  bankrupt  should  not  have  been  adjudicated  bankrupt,  under  paragraph  (a). Mr Ross has committed an act of bankruptcy, by failing to honour the bankruptcy notice.  The notice itself was only issued after judgment had been obtained in the Blenheim District Court, the alleged dispute in relation to the fees having been aired

no fewer than three times, as noted above.   No evidence has been adduced by Mr Ross on matters which were not before the Court when the adjudication was made.   Nor has there been any defect in procedure, abuse of process or failure to bring a material fact to the notice of the Court.[1]

[1] Brookers Insolvency Law & Practice in 309.04, Re Hunter ex parte CIR 2000, 19 NZTC 15,722.

[8]      There is no basis upon which I am able to form a view that Mr Ross should not have been adjudicated bankrupt.  The application is declined.  The respondent is

entitled to costs on a 2B basis plus disbursements fixed by the Registrar.

J G Matthews

Associate Judge

Solicitors:

Applicant – Mr J R D Ross, In Person

Duncan Cotterill (Alistair Darroch), PO Box 827, Nelson. Email:  [email protected]

Counsel: Mr S Galbreath