Sawyers v Police HC Christchurch CRI 2007-409-000106

[2007] NZHC 1791

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-00572

IN THE MATTER OF     The Insolvency Act 1967

BETWEEN  OF THE BANKRUPTCY OF CRAIG GRANT WARBURTON

Debtor

AND  THE COMMISSIONER OF INLAND REVENUE, WELLINGTON

Creditor

Hearing:         6 June 2007

Appearances: Mr T Molloy for Creditor

No appearance for Debtor

Judgment:      6 June 2007

ORAL JUDGEMENT OF ASSOCIATE JUDGE J P DOOGUE

W J Eisdell Moore, Crown Solicitor – Attn: T Molloy

Craig Warburton, c/o 13 Miltonia Road, Henderson, Auckland

BANKRUPTCY OF WARBURTON V THE COMMISSIONER OF INLAND REVENUE, WELLINGTON HC AK CIV 2007-404-00572  6 June 2007

[1]     A bankruptcy notice was served on Mr Warburton on 5 March 2007.   The notice was based on a judgment of $190,259.83 entered against Mr Warburton in the District Court.

[2]      On  20  March  2007  Mr  Warburton  filed  an  application  to  set  aside  the bankruptcy notice.   There were three grounds set out in the application notice as follows:

1.   That the debt has already been paid under protest; and

2.   That the Certificate of   Judgment relied upon by the judgment  creditor   is  not  issued  by  a   Court  with standing;

3.   That there is currently pending an application for review in respect of the improperly issued Certificate of Judgment.

[3]    Mr Warburton also filed and served an affidavit in support of his application.

[4]     The matter came before me on 9 May 2007. By that time the Commissioner had filed an affidavit in response to the application to set aside bankruptcy and as well a Notice of Opposition for the same purpose.  Mr Warburton appeared in person on 9  May 2007 as did Mr Molloy, counsel for the Commissioner.  I then timetabled matters to progress the application to set aside the statutory demand and fix 6 June

2007 at 12.30 p.m. as the time at which the application to set aside the statutory demand would be heard.

[5]    The matter has been called today, initially at 12.30 p.m. and again when I came into the Court at 12.45 p.m.  There was no appearance of Mr Warburton.

[6]     I will nonetheless briefly consider the grounds that he has advanced in his notice of application.  I assume that the grounds that he puts forward are asserted to be a basis upon which the Court is able to conclude that he has a counter claim, setoff or cross demand against the judgment creditor.

[7]     The first of the grounds as I have recorded is that Mr Warburton says he has paid the debt “under protest”.

[8]     What apparently happened was that Mr Warburton posted a $1 coin to the Inland Revenue asserting that that was full payment of his obligations.  The evidence for the Commissioner acknowledges that a coin was posted to the department on that basis but the offer, as the Commissioner put it, was declined.   That is the Commissioner declined to accept the coin in payment of Mr Warburton’s taxation liability which was some $190,000 according to the Commissioner.  I do not accept that there is any basis for Mr Warburton claiming he has a defence based upon the forwarding of the $1 coin.

[9]    The next ground concerns the Certificate of Judgment not being from a ‘Court with standing’.  There is in evidence a copy of the judgment which was entered in the District Court by His Honour Judge H M Taumaunu on 27 November 2006.  The Certificate of Judgement sealed under the seal of the Court was for the amount set out in the bankruptcy notice.   I accept that the Court had jurisdiction to enter the judgment pursuant to section 156 of the Tax Administration Act 1994.   There is simply no basis for the Court to set aside the bankruptcy notice on the ground that the Court had no standing.

[10]     So  far  as  the  third  ground  is  concerned,  it  is  not  entirely  clear  what

‘application for review’ Mr Warburton claims he has ‘pending’.  No details are given of the review.  An officer for the Inland Revenue Department, Ms Wright has given an affidavit which affirmatively deposes that the Commission has not been served with  any  application  for  review  in  respect  of  the  judgment  or  Certificate  of Judgment.  Given that deposition in the absence of any specificity in Mr Warburton’s notice of application and  supporting  affidavit,  the third  ground of the  notice  of application is simply not made out and would not be a basis for the Court setting aside the bankruptcy notice.

[11]     There seems to have, in addition to the above grounds, been an indication given that Mr Warburton did not recognise the jurisdiction of the Court broadly on grounds which are generally referred to as those of ‘Mäori sovereignty’.   There is

nothing in that point either.  Decided authorities have made it clear that that is so: See Rupe v Commissioner of Inland Revenue (2004) 21 NZTC18,519HC (where Venning J dealt with this type of submission and rejected it).

[12]     There being no grounds upon which the Court can set aside the bankruptcy notice the application to set aside the bankruptcy notice is dismissed.  Mr Warburton is ordered to pay costs on a 2B basis together with disbursements to be fixed by the

Registrar.

J.P. Doogue

Associate Judge