Samson Corporation Limited v Sutherland - [2025] NZHC 374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-629

[2025] NZHC 374

UNDER the Insolvency Act 2006

IN THE MATTER OF

an application to bankrupt WENDY ANN SUTHERLAND

BETWEEN

SAMSON CORPORATION LIMITED

Judgment Creditor

AND

WENDY ANN SUTHERLAND

Judgment Debtor

Hearing: 24 February 2025 at 10:00am

Appearances:

Brett Martelli for the Judgment Creditor Judgment Debtor is self-represented

Judgment:

4 March 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Creditor’s application for an adjudication order]

This judgment was delivered by me on 4 March 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Martelli Yaqub Lawyers Limited, Onehunga, Auckland, for the Judgment Creditor

Copy for:
Ms W A Sutherland, Auckland, Judgment Debtor

SAMSON CORPORATION LIMITED v SUTHERLAND [2025] NZHC 374 [4 March 2025]

[1] This is an application by the judgment creditor, Samson Corporation Limited (Samson Corporation), for an order adjudicating the judgment debtor, Ms Wendy Ann Sutherland (Ms Sutherland), bankrupt. The application is opposed by Ms Sutherland.

Background

[2] Samson Corporation applied for summary judgment against Ms Sutherland for failure to pay lease arrears. On 7 December 2022, Judge Sharp in the District Court granted Samson Corporation’s application, and judgment of $65,814.97 (including costs) was entered against Ms Sutherland.1

[3] On 6 April 2023, Samson Corporation served Ms Sutherland with a bankruptcy notice.2 Ms Sutherland did not apply to set the bankruptcy notice aside within 10 working days (or at all).

[4] Ms Sutherland admits liability for $47,000.3 She did not pay. Samson Corporation has applied to bankrupt Ms Sutherland. Ms Sutherland opposes the application and requests that the Court exercise its discretion under s 37 of the Insolvency Act 2006 (Insolvency Act) to refuse to adjudicate her bankrupt. Ms Sutherland states bankruptcy will be ruinous as she is a director of a catering company, Hudson Fox Limited, which she will not be able to operate if adjudicated bankrupt.4

[5] On 8 April 2024, the parties reached an accord under which Ms Sutherland agreed to pay the judgment debt ($69,071) and costs ($8,395) by weekly instalments of $550.

[6] Samson Corporation was concerned that Ms Sutherland may default so did not discontinue the bankruptcy application and requested that the Court adjourn the matter

1 Oral Judgment of Judge Sharp dated 7 December 2022 (Samson Corporation Limited v Wendy Sutherland [2022] NZDC 24457).
2 Bankruptcy notice dated 6 April 2023.
3 Minute of Associate Judge Gardiner dated 23 November 2023 at [2].
4 Notice of opposition to judgment creditor’s submission dated 18 February 2025 at [2].

for six months so it could monitor Ms Sutherland’s compliance with the conditional agreement.5 On 8 April 2024, Associate Judge Lester granted the adjournment.6

[7] Ms Sutherland has defaulted under the agreed instalment payment arrangement. She paid $7,945, before stopping all payments in September 2024.7

[8] On 5 February 2025, Samson Corporation terminated the instalment agreement which restored the parties…

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: [2025] NZHC 374
Decision Date: 4 March 2025

CaseChat Overview and Summary

Samson Corporation Limited applied for an adjudication order against Wendy Ann Sutherland for failure to pay a judgment debt of over $47,000. Ms Sutherland opposed the application and sought that the Court exercise its discretion under s 37 of the Insolvency Act 2006 to decline to make an order for adjudication. The legal issue was whether the Court should exercise its discretion to refuse Samson Corporation’s application for an adjudication order. Samson Corporation submitted that Ms Sutherland had not established sufficient grounds under s 37 for the Court to refuse the adjudication order sought. Ms Sutherland opposed the application on the basis that she could make payments and that adjudication would prohibit her from being a director of her catering company, Hudson Fox Limited. The Court held that Ms Sutherland had not made out grounds for the Court to exercise its discretion to refuse an adjudication order. There was no evidence before the Court of her ability to pay the debt. The conflict of interest issue raised by Ms Sutherland was untenable as there was no evidence of misuse of confidential information by Samson Corporation’s counsel. The Court made an order that Samson Corporation’s application for an adjudication order against Ms Sutherland should be made, with effect from the time and date of issue of this judgment.

Orders