IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000244
[2018] NZHC 3421
IN THE MATTER of the Insolvency Act 2006 AND
IN THE MATTER
of the bankruptcy of JOHN BRIAN KIPPING
BETWEEN
GERALD ERRINGTON SHARROCK
Judgment Creditor
AND
JOHN BRIAN KIPPING
Judgment Debtor
Hearing: 10 December 2018 Appearances:
R Hucker and R Selby for Judgment Creditor J B Kipping (Judgment Debtor) in person
Judgment:
19 December 2018
JUDGMENT OF JUSTICE OSBORNE
on adjudication application
Introduction
[1] Gerald Sharrock has three judgment debts (being costs orders) against John Brian Kipping. They total $35,858.99 (without interest and subsequent costs).
[2] The background to the debts lies in events examined by this Court in a number of judgments1 and by the Court of Appeal.2 Mr Kipping had involved himself in the
1 These include Sharrock v Wedd [2016] NZHC 1477; Sharrock v Wedd [2017] NZHC 1739;
Sharrock v Kipping [2018] NZHC 2210.
2 Kipping v Sharrock [2018] NZCA 289 [“the Court of Appeal judgment”].
SHARROCK v KIPPING [2018] NZHC 3421 [19 December 2018]
affairs of a Mr Wedd. Mr Wedd, through entities he controlled, had dealings with Mr Sharrock’s company, Affordable Residential Ltd (“Affordable”). The litigation (which was unsuccessful for Mr Wedd) led to adverse costs judgments. Subsequent litigation has led to further costs orders.
The adjudication application
[3] Mr Sharrock applies for an order adjudicating Mr Kipping bankrupt. He relies on an available act of bankruptcy which occurred when Mr Kipping failed to meet the requirements of a bankruptcy notice – the time for payment of which had been extended by this Court when it dismissed Mr Kipping’s application for an order setting aside the bankruptcy notice.3
Mr Kipping’s opposition
The basis of opposition
[4] Mr Kipping opposes the making of an adjudication order on the basis that the Court should exercise its discretion under s 37 Insolvency Act 2006 or on the alternative basis that the Court should grant a halt under s 38 of the Act.
[5] Leaving aside for the moment particular arguments advanced in opposition, Mr Kipping asserts two over-arching grounds:
(a)adjudication would cause a miscarriage of justice;
(b)there has been a breach of natural justice.
[6] Mr Kipping also asserted that he has no assets and is unlikely to be able to pay these judgment debts in the coming three years.
[7] In the course of his submissions, Mr Kipping accepted that the reliance on a breach of natural justice takes matters no further than the assertion of a miscarriage of justice. Mr Kipping conceded that he does not rely on there having been any breach
3 Sharrock v Kipping [2018] NZHC 2210, at [40].
of fair process by any tribunal or court. The reference to “natural justice” was his alternative way of expressing the “miscarriage of justice” ground.
Adjudication under s 37 of the Act
[8]I adopt these principles in relation to this adjudication application:
(a)the creditor has the onus of establishing the…
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- Sharrock v Kipping [2018] NZHC 3421
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- [2018] NZHC 3421
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