Silich v White - [2020] NZHC 2107

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2019-419-141

[2020] NZHC 2107

IN THE MATTER OF the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of ALLEN POTETE WHITE

BETWEEN

PAUL DOUGLAS SILICH, LARRY WARREN CROW, CONRAD TAHANA O’CARROLL and PATRICIA RANGIKATA

O’CARROLL-LEOTA as trustees of Te Rununga O Ngati Tama Trust

Judgment Creditors

AND

ALLEN POTETE WHITE

Judgment Debtor

Hearing: 3 March 2020; further memorandum 18 March 2020

Appearances:

RA Idoine for the Judgment Creditors Mr A White in person

Judgment:

20 August 2020

Reissued:

4 September 2020

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 20 August 2020 at 4pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Anthony Harper, Auckland

Copy to: Mr A White

Silich & Ors v White [2020] NZHC 2107 [20 August 2020]

[1] The judgment creditors apply for an order adjudicating the judgment debtor (Mr White) bankrupt.

[2] I issued a judgment on the application on 20 August 2020, but I directed that, pending further order, the judgment was only to be made available to the parties and to the Official Assignee. The reason for that order was that there appeared to be an issue as to whether the names of the judgment creditors, or at least two of them, should be suppressed having regard to the provisions of the Criminal Records (Clean Slate) Act 2004. I invited submissions on that issue within five working days.

[3] By memorandum dated 21 August 2020, counsel for the judgment creditors advised that his clients took no issue with publication of the judgment in unredacted form. No memoranda were filed by Mr White or the Official Assignee. The judgment is accordingly now re-issued on an “open” basis, with no restrictions on publication.

[4] The bankruptcy application is based on a judgment for costs made against Mr White on 8 April 2019 in the sum of $13,827. A bankruptcy notice claiming that sum plus interest of $72.40 and further costs of $796 was served on Mr White on 12 July 2019. He did not within the 10 working days stated in the bankruptcy notice pay the sum demanded or apply for an order setting aside the bankruptcy notice.

[5] The judgment creditors filed their application for an adjudication order on 25 September 2019. On 7 November 2019, Mr White, acting on his own behalf, filed an affidavit which he described as being “in support of an originating application for the Court to use its inherent jurisdiction to set aside a bankruptcy notice”.

[6] The case came before me in the bankruptcy list on 11 November 2019. I noted that Mr White’s affidavit filed on 7 November 2019 was well out of time to be dealt with as an application to set aside the bankruptcy notice, but I accepted the document as sufficient notice that Mr White wished to oppose the bankruptcy adjudication application. I made a direction that…

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 Silich v White

Details

AGLC: Silich v White [2020] NZHC 2107
Case: [2020] NZHC 2107
Decision Date: 20 August 2020

CaseChat Overview and Summary

The judgment creditors applied for an order adjudicating the judgment debtor (Mr White) bankrupt. The application was based on a judgment for costs made against Mr White on 8 April 2019. The bankruptcy notice, which was served on 12 July 2019, claimed that sum plus interest of $72.40 and further costs of $796. Mr White did not within the 10 working days stated in the bankruptcy notice pay the sum demanded or apply for an order setting aside the bankruptcy notice. The judgment creditors filed their application for an adjudication order on 25 September 2019. On 7 November 2019, Mr White, acting on his own behalf, filed an affidavit which he described as being “in support of an originating application for the Court to use its inherent jurisdiction to set aside a bankruptcy notice”. On 22 November 2019, Mr White filed two further documents. The first was a notice of his intention to oppose the adjudication application. The second document filed by Mr White on 22 November 2019 was an amended application to the Court to set aside the bankruptcy notice in the Court’s inherent jurisdiction. The amended application was said to be based on s 37 of the Insolvency Act 2006 and/or the inherent jurisdiction of the Court. The court found that the judgment creditors were prima facie entitled to the adjudication order they seek. It was for Mr White to point to facts or circumstances that would make adjudication unjust or inequitable, or to some other reason for the Court to refuse the order sought. In the court's judgment, Mr White was not done that. The court made the following orders: (a) an order adjudicating Mr White bankrupt; and (b) costs to the judgment creditors on a 2B basis, plus disbursements as fixed by the Registrar.

Orders