RPW Judgment Creditor AND H Judgment Debtor - [2022] NZHC 2344

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-14

[2022] NZHC 2344

BETWEEN
RPW

Judgment Creditor

AND

H

Judgment Debtor

Hearing: 3 August 2022

Appearances:

Jesse Savage for the Judgment Creditor Judgment Debtor is self-represented

Judgment:

14 September 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 14 September 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………….
Registrar/Deputy Registrar

Solicitors:
Norris Ward McKinnon (Jesse Savage), Hamilton, for the Judgment Creditor

Copy for:
H (the Judgment Debtor)

RPW v H [2022] NZHC 2344 [14 September 2022]

Introduction

[1] RPW applied on 29 April 2022 for orders adjudicating H bankrupt, and as to costs.1

[2] H seeks a stay of the adjudication proceeding on the grounds that he currently has judicial review proceedings on foot in the Employment Court in respect of several Employment Relations Authority (ERA) determinations, which he says will render RPW’s bankruptcy application nugatory.

[3] RPW has applied to strike out H’s judicial review application. That issue is before the Employment Court, which has yet to issue its decision.

Background

[4] RPW’s application is based on a bankruptcy notice for $67,035.78. The debt arises from various penalty and costs awards imposed on, or made against, H in the ERA and Employment Court.

[5] H is an employment advocate. He represented a former employee of RPW during a mediation, which resulted in a settlement agreement dated 5 March 2018. The agreement imposed an obligation on the parties not to make derogatory or disparaging comments about the other. H signed the record of settlement to indicate his agreement to being bound by that term. However, he went on to make disparaging comments about RPW on a public Facebook page. This led to seven determinations of the ERA, culminating in orders requiring H and his company to comply with the settlement terms and to remove the offending comments from social media.2

1 Creditor’s application for adjudication order dated 29 April 2022 at [1].
2 H v Employment Relations Authority [2021] NZSC 188 [SC decision] at [5], citing R v H [2018] NZERA Auckland 253.

[6] H challenged the ERA’s final two determinations, dealing with penalties. The Employment Court refused applications for leave to extend time to challenge the first five determinations and dismissed the challenges against the last two determinations. That being so, the penalties order by the ERA stood and costs were awarded to RPW.3 The Court of Appeal struck out H’s subsequent application for judicial review of the directions and orders of the ERA and decision of the Employment Court.4 The Supreme Court declined H leave to appeal from that decision.5

[7] As stated above, H has now brought judicial review proceedings in the Employment Court, which RPW has sought to strike out. The Employment Court’s decision is pending.

[8] In the time since RPW applied for…

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: [2022] NZHC 2344
Decision Date: 14 September 2022

CaseChat Overview and Summary

The case between RPW, the judgment creditor, and H, the judgment debtor, was heard in the High Court of New Zealand, Hamilton Registry. RPW applied for orders to adjudicate H bankrupt based on a bankruptcy notice for $67,035.78, arising from various penalty and costs awards imposed on H in the Employment Relations Authority (ERA) and Employment Court. H applied for a stay of the adjudication proceedings, arguing that the debt was based on illegal orders and that the bankruptcy application would be nugatory if his judicial review proceedings were successful. The court considered whether to halt the bankruptcy application under sections 38 and 42 of the Insolvency Act. The court found that H's judicial review proceedings were unlikely to be successful and that the bankruptcy application should proceed. The court dismissed H's application for a stay of proceedings and awarded costs to RPW on a 2B basis.

Orders