Sisson v Chesterfields Preschools Limited (in liquidation)
[2017] NZCA 257
•19 June 2017 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA310/2017 [2017] NZCA 257 |
| BETWEEN | THERESE ANNE SISSON |
| AND | CHESTERFIELDS PRESCHOOLS LIMITED (IN LIQUIDATION) |
| Counsel: | Appellant in Person |
Judgment: (On the papers) | 19 June 2017 at 10.30 am |
JUDGMENT OF COOPER J
(Application for stay of proceedings)
The application for a stay of proceedings is declined.
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REASONS
The appellant, Ms Sisson, has filed an appeal against the refusal by Associate Judge Osborne of an application she made for an order under s 38(1) of the Insolvency Act 2006 halting the respondent creditor’s application for adjudication.[1] The Judge dismissed the application, stating that reasons would follow.[2] Those reasons have not yet become available.
[1]Chesterfields Preschools Ltd (in liq) v Sisson [2017] NZHC 1292.
[2]At [3].
Having dismissed that application, the Judge then proceeded to hear the judgment creditor’s application for an order adjudicating Ms Sisson bankrupt; the debt relating to interlocutory costs and disbursement orders of the High Court. On that application, he reserved his decision. Ms Sisson now seeks an “interim stay of enforcement and adjudication proceeding in bankruptcy”. The present judgment concerns that application.
Counsel for the respondent has filed a memorandum noting, amongst other things, that the stay application is opposed on the basis that the appeal against the refusal of the order sought under s 38 of the Insolvency Act has not been served. The respondent’s memorandum refers also to certain matters of record that may usefully be recited as part of the background to the appeal:
(a)On 6 March 2017 Ms Sisson was served with the bankruptcy notice dated 27 February 2017. She failed to comply with the bankruptcy notice and has not applied to have the bankruptcy notice set aside.
(b)On 1 May 2017 Ms Sisson was served with the respondent creditor’s application for an adjudication order dated 28 March 2017 as well as an affidavit in support sworn on the same date and a summons to debtor dated 31 March 2017.
(c)On 17 May 2017 Ms Sisson served her notice of opposition to the adjudication application along with an initial application for a stay of the adjudication proceedings.
(d)On 18 May 2017 the matter was called before Associate Judge Osborne who directed that Ms Sisson was to file and serve any amended pleadings or further evidence by 24 May 2017.
(e)On 24 May 2017 Ms Sisson filed and served the application for stay dated 24 May 2017.
On 12 June 2017 the stay application was dismissed in the oral judgment giving rise to this appeal. In the notice of appeal Ms Sisson asserts that the Judge’s decision was “manifestly wrong”, and not in accordance with principles applicable to an application for stay of proceeding and enforcement in accordance with the High Court Rules and ss 38, 42(2) and 43 of the Insolvency Act.
Various other documents have been filed by Ms Sisson. Included amongst them are notices of appeal against judgments awarding costs against Ms Sisson of:
(a)Nation J delivered on 15 June 2016;
(b)Associate Judge Osborne delivered on 3 October 2016;
(c)Gendall J delivered on 16 February 2017; and
(d)Gendall J delivered on 24 March 2017.
In a letter to the Registrar dated 13 June she describe these as “draft Notices of Appeal”. Filing fees have not been paid. Ms Sisson has made an application for an extension of time to appeal against Gendall J’s judgment of 16 February 2017, but the material that I have seen does not include an application to extend the time for appealing against the other judgments referred to in [4]. The appeals are couched in general terms and do not re-engage in a realistic way with the basis on which the various costs judgments were delivered.
Section 414(2) of the Act provides that an aggrieved person may appeal to the Court of Appeal from a decision of the High Court. The Associate Judge’s decision declining Ms Sisson’s application to halt the application for adjudication is no doubt a decision within the ambit of s 414(2). However, the appeal is one that inevitably has little prospect of success in circumstances where the Associate Judge has already heard the application for adjudication and is now considering whether an order for adjudication should be made.
I am not persuaded that there are proper grounds for granting the stay application. It seems that the main basis upon which it is pursued is the suggestion that Ms Sisson can rely on s 42(2) of the Act, and the notices of appeal to which I have referred in [5] above. Section 42(2) provides:
42 Halt or refusal of application when judgment under appeal
…
(2)If the debtor has appealed against the judgment or order underlying the bankruptcy notice or the judgment for nonpayment of trust money, as the case may be, and the appeal is still to be decided, then the Court may—
(a)halt the creditor’s application for adjudication; or
(b)refuse the application.
As noted above, only one of those appeals, that in relation to Gendall J’s decision of 16 February 2017, has been the subject of an application for extension of time. Such an application would also be necessary, but has not been filed, in respect of the notices of appeal against the other three High Court decisions. These appeals are plainly a very belated attempt to attack the basis on which the bankruptcy notice was served.
Ms Sisson’s application for stay claims that the Associate Judge did not accept that the filing of the application for an extension of time meant that the appeal “merited consideration in terms of s 42(2)” of the Insolvency Act. The Associate Judge, however, has yet to give his reasons, and I am not prepared to accept Ms Sisson’s assertion as to the basis upon which he declined to halt the application. While at first glance an appeal that is the subject of an application for an extension of time might be an “appeal” for the purposes of s 42(2) of the Act, the power given by s 42(2) is discretionary. No doubt a number of matters might be relevant to the exercise of that discretion, including the perception of the Associate Judge as to the likely prospects of success of any appeal.
For present purposes, the telling consideration is that it was not until 12 June 2017, when the application for adjudication was to be considered by the Judge, that Ms Sisson applied for an extension of time to appeal. I note that the actual application for an extension of time was not received in this Court until 14 June. The various notices of appeal to which I have referred above were also not received until 14 June. It follows that there was no extant appeal at the time the Associate Judge made his order. In accordance with this, the Associate Judge was considering an application for a halt of the respondent creditor’s application under s 38 of the Insolvency Act. He was well-placed to consider where the merits lay in relation to that application and I have no doubt the belated nature of the attempt to appeal the costs judgments on which the bankruptcy notice was based will have been influential. The application for stay in this Court raises similar considerations. It may be added that the belated attempt to challenge costs orders, and the very general terms on which each of the appeals is based, makes them unpersuasive as a ground for a stay.
The Associate Judge had completed the hearing of the application for adjudication and reserved his decision on it by the time the notices of appeal were received by the Registrar. In those circumstances I do not consider it would be appropriate for a stay to be granted at this point. If there are any grounds to do so, Ms Sisson will be in a position to appeal against the order for adjudication if and when it is made.
In the meantime, if Ms Sisson intends to proceed with the notices of appeal against the various costs judgments, she will need to ensure that they are put on a proper footing as to filing fees, extension of time and service on the respondent.
The application for a stay of proceedings is declined.
Solicitors:
Lane Neave, Christchurch for Respondent
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