Sigglekow v Turner - [2012] NZHC 3334

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002214 [2012] NZHC 3334

IN THE MATTER OF the Insolvency Act 2006

AND

IN THE MATTER of the Bankruptcy of Noeline Jane Turner

BETWEEN CHRISTELLE JANE SIGGLEKOW Judgment Creditor

ANDNOELINE JANE TURNER Judgment Debtor

Hearing: 11 December 2012 (Heard at Christchurch)

Appearances: A J Davis for Judgment Creditor
L N Adams for Supporting Creditors Namel Ltd and QBE Insurance Ltd
No appearance by Mrs Turner

Judgment: 11 December 2012

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to setting aside a bankruptcy notice]

[1] Mrs Turner has applied to set aside a bankruptcy notice issued by Ms Sigglekow. This is her application. It was to be heard in the List at 10.00 am this morning as recorded on the application served on Ms Sigglekow’s solicitors. Mrs Turner has not appeared. I stood the matter down to the end of the List. As I commence this judgment at 10.35 am, Mrs Turner has still not appeared and Mr
Davis asks that the Court now deal with the proceeding on the merits.

SIGGLEKOW V TURNER HC CHCH CIV-2012-409-002214 [11 December 2012]

[2] Ms Sigglekow is the first defendant in a proceeding in which Mrs Turner sues a number of defendants for damages (CIV-2006-409-001172).

[3] Earlier this year, in the damages proceeding, Ms Sigglekow successfully applied for security for costs against Mrs Turner. In accordance with the principles stated in High Court Rule 14.8 the Court ordered Mrs Turner to pay the costs and disbursements of the application on a 2B basis in a total of $5,620.30. The Court’s order is dated 17 August 2012 and was sealed on 11 September 2012.

[4] There is no suggestion that the execution of the costs order has been stayed.

Grounds of setting aside application

[5] Mrs Turner filed her own application in which she sets out six grounds which

I summarise:

(a) The judgment pursuant to which the bankruptcy notice has been issued as an interlocutory judgment and not a final judgment;

(b)Mrs Turner has a counterclaim and cross-demand against Ms Sigglekow which could not be set out in the proceeding in which Ms Sigglekow obtained the judgment because the judgment was concerned only with an interlocutory application for security for costs. In the substantive proceeding Mrs Turner says that she has a valid cross claim for the liquidated amount of $67,000 plus interest being the return of real estate commission and an undisclosed secret profit;

(c) The bankruptcy notice is issued for an ulterior motive, driven by the creditor’s solicitor rather than the creditor herself, the motive being to defeat Mrs Turner’s claim against the creditor in the substantive proceeding;

(d) The bankruptcy notice is not issued for a genuine, legal purpose of

equally distributing Mrs Turner’s assets;

(e) The judgment debt owed by Mrs Turner to the creditor has been caused by the creditor’s own acts and omissions to pay money owing to Mrs Turner;

(f) The bankruptcy notice amounts to an abuse of legal procedure…

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 Sigglekow v Turner

Details

AGLC: Sigglekow v Turner [2012] NZHC 3334
Case: [2012] NZHC 3334
Decision Date: 11 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the case of Sigglekow v Turner was heard and determined by Associate Judge Osborne. The primary issue before the Court was whether a bankruptcy notice issued by Christelle Jane Sigglekow against Noeline Jane Turner should be set aside. Mrs Turner, the judgment debtor, did not appear in court despite the matter being listed for hearing, leading the Court to proceed with the case on the merits. The central legal issues involved the finality of the costs judgment, the existence of a cross claim, and the motives behind the issuance of the bankruptcy notice.

Associate Judge Osborne first considered the argument that the costs judgment was not final, which was rejected by the Court. The Court held that the costs order was a final order, as it was immediately payable and enforceable. The Judge noted that the nature of the application for security for costs did not provide an appropriate context for a set off or cross claim, and therefore, Mrs Turner's assertion of a cross claim was not substantiated with sufficient evidence. Furthermore, the Court found no evidence of improper motives behind the issuance of the bankruptcy notice, and thus, the notice was issued for a genuine legal purpose. The Judge concluded that the application to set aside the bankruptcy notice was without merit.

In the final order, the Court dismissed Mrs Turner's application to set aside the bankruptcy notice. The Court also extended the time for payment under the bankruptcy notice to 24 December 2012, and ordered that the debtor would pay costs to the creditors on a 2B basis, along with disbursements to be fixed by the Registrar.

Orders