Sanson v Te Whata - [2024] NZHC 123

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-488-000072

[2024] NZHC 123

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of P P Te Whata

BETWEEN

CRAIG ALEXANDER SANSON as

liquidator of Shearing Services Kamupene Limited (in liquidation)

Judgment Creditor

AND

PESSIMAN PEHIMANA TE WHATA

Judgment Debtor

Hearing: 5 February 2024

Appearances:

R Hindriksen for the Judgment Creditor Debtor in Person

Judgment:

8 February 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 8 February 2024 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Meredith Connell, Auckland

SANSON v TE WHATA [2024] NZHC 123 [8 February 2024]

Introduction

[1] The judgment creditor (Craig Sanson as the liquidator of Shearing Services Kamupene Limited (in liquidation) (SSKL)) applies for an order adjudicating the judgment debtor, Pessiman Pehimana Te Whata, bankrupt.

[2] The basis for the adjudication application is Mr Te Whata’s failure to comply with a bankruptcy notice dated 4 August 2023 and served on him on 9 August 2023. The bankruptcy notice required Mr Te Whata to pay the judgment creditor a costs award of the Māori Land Court in the sum of $27,820.64. Mr Te Whata had applied as a representative of “Ngāti Moerewa o MHKM Māori Incorporation” (MHKM) for orders determining that properties owned by SSKL were Māori customary land. The Māori Land Court struck out the claim, finding that the SSKL properties are General Land, and that MHKM is not a Māori incorporation constituted by that Court.1 The Māori Land Court awarded 80 per cent of actual costs against Mr Te Whata on the basis that he acted unreasonably and frivolously in advancing the proceedings.2

[3] The adjudication application was called in the bankruptcy list on 27 November 2023. Mr Te Whata appeared and referred to a document that he had filed with the Court that same day entitled “Affidavit of Truth and Voluntary Declaration of Statement of Claim and Payment of Legal Costs” (the affidavit).3 The application was adjourned to allow the Court and Mr Sanson an opportunity to review the affidavit.

[4] At the hearing, Mr Te Whata referred to a further document he had filed that morning, which he claimed set out the basis for a counterclaim against Mr Sanson. That document was not on the Court file. After hearing submissions from Mr Hindriksen and Mr Te Whata, I reserved my decision. I have now reviewed the document filed by Mr Te Whata. This judgment gives my decision on the adjudication application, considering that document.

1      Ngāti Moerewa o MHKM Māori Inc v Attorney-General of New Zealand – Matatau 5E25F (2022) 248 Taitokerau MB 214 (248 TTK 214) at [3].
2      At [33] to [37].
3      An earlier version, “Voluntary Declaration and Affidavit of Trust and notice to settle all claims debts against Te What Cetui Que Trust”, was filed on 22 November 2023.

Legal principles

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 Sanson v Te Whata

Details

AGLC: Sanson v Te Whata [2024] NZHC 123
Case: [2024] NZHC 123
Decision Date: 8 February 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Gardiner heard an application by Craig Sanson, as liquidator of Shearing Services Kamupene Limited (in liquidation), to adjudicate Pessiman Pehimana Te Whata bankrupt. The application was based on Mr Te Whata's failure to comply with a bankruptcy notice served on him on 9 August 2023, which required him to pay costs awarded against him in the sum of $27,820.64 by the Māori Land Court. The Court needed to determine whether Mr Te Whata had committed an act of bankruptcy and if the criteria under section 13 of the Insolvency Act 2006 were met. Additionally, the Court had to consider whether there were any reasons under sections 36 and 37 of the Act to exercise its discretion not to adjudicate Mr Te Whata bankrupt.

The Court found that Mr Te Whata had indeed committed an act of bankruptcy by failing to comply with the bankruptcy notice or satisfy the Court that he had a cross-claim against Mr Sanson. The Court rejected Mr Te Whata's claims of dual personality and his assertion that a non-New Zealand court had jurisdiction over his real person. Mr Te Whata had made no legitimate proposal to pay Mr Sanson the outstanding judgment debt. The Court also dismissed Mr Te Whata's counterclaim against Mr Sanson, which involved a non-New Zealand court and was unrelated to the proceedings before the Court. The Court concluded that none of the matters raised by Mr Te Whata provided a sound basis for refusing to adjudicate him bankrupt.

Associate Judge Gardiner adjudicated Pessiman Pehimana Te Whata bankrupt and allowed the judgment creditor's costs of $6,186.91. The orders were made on 8 February 2024 at 3.30 pm.

Orders