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

[5]    The test for adjudicating a judgment debtor bankrupt is well settled. The judgment creditor must establish that the criteria under s 13 of the Insolvency Act 2006 (the Act) are met. If the s 13 criteria are met, the Court will then exercise the discretion conferred under ss 36 and 37 of the Act, which may include refusing to adjudicate on the basis that the debtor is able to pay their debts, that it is just and equitable not to make the order, or that, for any other reason, the order should not be made.4 However, the onus is on the opposing debtor to show why an order should not be made.5

Assessment

[6]The threshold for adjudication is clearly met in this case:

(a)Mr Te Whata is indebted to Mr Sanson for $27,820.64 in accordance with a judgment obtained against him for costs in the Māori Land Court on 26 May 2022; and

(b)he committed an act of bankruptcy by failing to comply with the bankruptcy notice or satisfy the Court that he has a cross-claim against Mr Sanson.

[7]    Furthermore, Mr Te Whata’s affidavit fails to identify any basis for why the Court should exercise its discretion to refuse to make an adjudication order.

[8]    At [1] of his affidavit, he makes various claims about his identity. The essence of the claims is that he is “a living breathing Rangatira Tangata Whenua who claims legal standing as Principal of the Cestui Que Trust.” This appears to be consistent with a “phenomenon through which litigants deploy ‘a collection of legal-sounding but false rules that purport to be law’” such as “dual personality” or “split person” theory, in which the litigant attempts to distinguish their identity as a living, breathing person from their corporate or legal form.6

4      Insolvency Act 2006, s 37(b)–(d).

5      Baker v Westpac Banking Corporation CA212/92, 13 July 1993 at 4.

6      DeMarco v Official Assignee [2023] NZHC 1576 at [8]–[13].

[9]    I reject this assertion of Mr Te Whata’s legal standing. Mr Te Whata is the judgment debtor. He is the person named in the Māori Land Court judgment and the person named in the Particulars Required for Registration of Birth and in the birth certificate annexed to his affidavit.

[10]   At [2] of his affidavit, Mr Te Whata refers to annexure B, which is a “Birth Certificate Bond … to the value of Thirty Thousand Dollars and assign[ed] to the Deputy Registrar of the High Court … to setoff the account CIV 2023-488-000072.” This ‘bond’ appears to be submitted as a way of settling Mr Te  Whata’s debt to     Mr Sanson. However, it does not involve a proposal to pay Mr Sanson any money but rather presents as being a continuation of the dual personality proposition at [1] of the affidavit, whereby the debtor, “Te Whata”, indemnifies “Pessiman-Pehimana” for any “losses incurred”. The document itself is presented as providing for “payment to settle and close the account of court costs” in the present proceedings.

[11]   At [3] of his affidavit, Mr Te Whata refers to annexure C, which is a document entitled “Order of Payment of Legal Costs”, dated 27 November 2023. It is styled to resemble a court order and has purportedly been issued by “Te Kooti Marae o Ngatimoerewa” (Te Kooti). Te Kooti is not a court of New Zealand and has no jurisdiction over bankruptcy adjudications made under the Act. The ‘court order’ records that:

(a)Te Kooti has jurisdiction over the real or living person that is Pessiman Pehimana Te Whata, while the High Court only has jurisdiction over his legal person as “Cestui Que Trust”.

(b)The legal costs of $27,820.64 will be paid from the trust estate account and they “have issued a bond to that effect.” This is apparently a reference to annexure B of Mr Te Whata’s affidavit.

[12]   Mr Te Whata has not provided the Court with any legitimate basis to exercise its discretion to not  adjudicate him  bankrupt.  He has  made no proposal  to  pay  Mr Sanson the money owed under a judgment debt that has remained outstanding since 26 May 2022. Instead, he claims that he has a dual personhood, that a non-New

Zealand court has jurisdiction over his real person, and that a document he submitted (which has no force under New Zealand law) constitutes payment or settlement of the judgment debt. None of these claims have any merit whatsoever.

[13]   Finally, I address the document filed on the morning of the hearing, said to provide a counterclaim against Mr Sanson. This document, dated 30 November 2023, is described as an “Interlocutory Application for Counterclaim”. It is unclear what proceeding this document relates to as it bears the CIV number of this application but is brought under different legislation7 and involves different parties. MHKM appears to ‘counterclaim’ against “the liquidators of [SSKL]”, and, in some instances, the Commissioner for Inland Revenue, for $41,100,539 for trespass. This claim seems to be   a   continuation   of   the   claim   struck   out   in   the   Māori   Land   Court.   Mr Te Whata has briefly set out how the figure claimed is calculated,8 but a significant proportion of the claim is based on a ‘ruling’ of Te Kooti Rangatira Ateha. Te Kooti Rangatira Ateha has no jurisdiction in New Zealand. As such, this Court will not “enforce” the ‘orders’.

[14]    Mr Te Whata has committed an act of bankruptcy. None of the matters he has raised provide a sound basis for the Court to refuse to adjudicate him bankrupt.

Result

[15]I order:

(a)Pessiman Pehimana Te Whata, of 6406 Mangakahia Road, Tautoro, is adjudicated bankrupt; and

(b)the judgment creditor is allowed their 2B scale costs of $5,258 and disbursements of $928.91: a total of $6,186.91.

7      “Section 4 of Te Ture Whenua Maori Land Act 1993, Tikanga Maori customary laws, values, and practices amended by Maori Incorporation Constitution Regulations 1994/95 Ngatimoerewa Tikanga Regulations 2023; Sections 24A, 24B, 24C, 61 and 85 of Te Ture Whenua Maori Land Act 1993, and section 39 of the Contract and Commercial Law Act 2017; and Judicial Review Proceedings Act 2016”.

8      At 8.2 of the affidavit.

[16]These orders are timed at 3.30 pm on Thursday, 8 February 2024.

Associate Judge Gardiner