Schmidt v Hair - [2012] NZHC 2452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-008142 [2012] NZHC 2452

UNDER Insolvency Act 2006

IN THE MATTER OF the bankruptcy of Anthony Mikhal Schmidt (also known as William Perese and previously known as Wiremu William Anthony Te Whairoa Wanoa, William Daniel Hirchkop and Bill Khan Reichfeld)

BETWEEN ANTHONY MIKHAL SCHMIDT Judgment Debtor

ANDNOEL HAIR Judgment Creditor

Hearing: 17 September 2012
and 21 September 2012

Appearances: R S Pidgeon for the Judgment Debtor
N W Woods for the Judgment Creditor

Judgment: 21 September 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:
N Woods, Rice Craig, Papakura – rc@ricecraig.co.nz
R Pidgeon, Pidgeon Law, Auckland – Richard@pidgeonlaw.co.nz
T Schmidt – thenzfamily2006@yahoo.com
I Razak, Smith and Partners, Henderson – ilsaad.razak@smithpartner.co.nz

ANTHONY MIKHAL SCHMIDT V NOEL HAIR HC AK CIV 2011-404-008142 [21 September 2012]

[1] Mr Schmidt has applied to set aside the bankruptcy notice or to stay the execution of the bankruptcy notice or to halt the adjudication application.

[2] Yesterday I delivered my judgment in proceeding CIV 2012-404-001793 (CIV 1793) upon the applications by the defendants to strikeout the proceeding filed by Mr and Ms Schmidt.

[3] In the opening paragraphs of that judgment I outlined some facts surrounding this matter. I did so to explain why I would be delivering a judgment in relation to CIV 1793 before ruling in relation to Mr Schmidt’s applications in this matter. I did so in part also to provide a chronology to identify when that proceeding CIV 1793 was filed in relation to service of the bankruptcy notice upon Mr Schmidt.

[4] In yesterday’s judgment, I reviewed Mr Schmidt’s grounds for making the applications he has in this matter. Those included his claim that an order for adjudication would cause an injustice by preventing him from pursuing his claim under CIV 1793.

[5] The balance of his reasons for opposing adjudication focussed upon claims that service of the bankruptcy notice was not properly effected; that the bankruptcy notice was defective; and that he claimed he could in any event meet payment of the
‘correct’ amount due under the bankruptcy notice.

[6] The purpose of adjourning this matter to today was to enable the Court to better consider Mr Schmidt’s grounds for opposition in the outcome of the strike out applications.

Service of the bankruptcy notice

[7] The evidence about whether service occurred was disputed by Mr Schmidt. Accordingly I heard evidence from the process server Mr Proctor and in response from Mr Schmidt.

[8] Mr Schmidt says that on 16 February 2012 he was alone in an interview room on the ground floor of the High Court preparing for a court appearance that morning. Apparently there was no desk in that room.

[9] Mr Schmidt said he saw Mr Proctor ‘hanging around’ the Court. He could see Mr Proctor through the glass panel in the door. He says Mr Proctor came up to the door. At no time were documents served on him nor was there any endeavour to hand documents…

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 Schmidt v Hair

Details

AGLC: Schmidt v Hair [2012] NZHC 2452
Case: [2012] NZHC 2452
Decision Date: 21 September 2012

CaseChat Overview and Summary

The case of Schmidt v Hair involved a dispute regarding the bankruptcy of Anthony Mikhal Schmidt. Noel Hair, the judgment creditor, applied for an adjudication of bankruptcy against Schmidt. Schmidt opposed the application, arguing that service of the bankruptcy notice was improper, the notice was defective, and he could meet the payment. The High Court of New Zealand, Auckland Registry, presided over the case. The court had to decide whether the bankruptcy notice was valid, if Schmidt could pay the debt, and if an adjudication order would unjustly prejudice his claims against others.

The court found that the service of the bankruptcy notice was valid as the process server testified that he placed the documents in front of Schmidt, and Schmidt acknowledged receipt of the documents. The court also determined that the bankruptcy notice was valid as there was an amount owing under a judgment, and any error in the amount could be corrected under the Insolvency Act 2006. Regarding Schmidt's ability to pay the debt, the court found that Schmidt could not pay the debt within the expected timeframe. Lastly, the court found that minimal weight should be given to claims of injustice as Schmidt's spouse could pursue those claims.

The court dismissed Schmidt's applications to set aside the bankruptcy notice and opposed any adjudication application or for a stay or adjournment of the adjudication application. The court ordered Schmidt's adjudication as a bankrupt and ordered costs and disbursements as submitted by the judgment creditor's solicitor.

Orders