Smartpay Limited v Kumar - [2025] NZHC 2409

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002098

[2025] NZHC 2409

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Manas Dharmendra Kumar

BETWEEN

SMARTPAY LIMITED

Judgment Creditor

AND

MANAS DHARMENDRA KUMAR

Judgment Debtor

Hearing: 20 August 2025

Appearances:

D Chisholm KC and J Ryan for the Judgment Creditor Judgment Debtor in person

D Chisholm KC and J Ryan for 4468440 Limited (in liquidation) as creditor in support

Judgment:

25 August 2025

JUDGMENT OF ASSOCIATE JUDGE GELLERT

This judgment was delivered by me on 25 August 2025 at 10:00 am.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Date ………………….

Solicitors:
Claymore Partners, Auckland David Chisholm KC, Auckland

SMARTPAY LTD v KUMAR [2025] NZHC 2409 [25 August 2025]

Introduction

[1] The judgment creditor, Smartpay Ltd (Smartpay), applies for the judgment debtor, Mr Kumar, to be adjudicated bankrupt. This application is supported by the liquidators of 4468440 Ltd (in liquidation) (formerly Optimizer Corporation Ltd) (OCL).1 Smartpay’s bankruptcy notice claimed $86,452.14. OCL says it is owed
$1,121,412.29 plus accruing interest.

[2] Mr Kumar opposes the application on the principal basis that the court does not have jurisdiction to hear the matter because leave was not granted properly in the first instance to serve the bankruptcy notice overseas. As a consequence there was no act of bankruptcy and no basis for the adjudication proceedings to be issued. Alternatively, Mr Kumar says that, even if leave was granted to serve the bankruptcy notice and adjudication proceedings overseas and proper service of those documents was effected, the court should nevertheless exercise its discretion to stay, halt, or refuse Smartpay’s application for adjudication.

[3]In essence, this proceeding turns on the following issues:

(a)Was leave granted to serve the bankruptcy notice overseas?

(b)Was the bankruptcy notice property served on Mr Kumar?

(c)Was leave granted to serve the bankruptcy proceedings overseas?

(d)Were the bankruptcy proceedings properly served on Mr Kumar?

(e)If the bankruptcy proceedings were properly served, should the Court exercise its discretion to refuse, stay, or halt the application to adjudicate Mr Kumar bankrupt?

1 Although OCL has since been renamed 4468440 Ltd (in liquidation), I will use the former name, as previous Courts have done in previous proceedings involving OCL.

Preliminary issues

[4] As a preliminary matter, Mr Kumar attempted to file a further affidavit at 3.56 pm on Friday, 15 August 2025. He explained that he believed this was permitted because it was three working days prior to the scheduled hearing. He further explained that he sought to file the evidence because it addressed matters in the submissions filed on behalf of Smartpay.

[5] Mr Kumar’s evidence in support of his opposition to the adjudication was required to be filed and served together with his notice of opposition, under r 24.18 of the High Court Rules 2016 (HCR).2 The parties had subsequently sought timetable orders by consent for the filing of…

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 Smartpay Limited v Kumar

Details

AGLC: Smartpay Limited v Kumar [2025] NZHC 2409
Case: [2025] NZHC 2409
Decision Date: 25 August 2025

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide if a man, Mr Kumar, should be declared bankrupt. The company Smartpay Ltd wanted this because Mr Kumar owed them money. The court had to decide if they had the right to hear this case and if it was fair to declare Mr Kumar bankrupt.

The court found that Smartpay Ltd followed the rules to ask the court to declare Mr Kumar bankrupt. They got permission to send the necessary papers to Mr Kumar even though he was living in India. Mr Kumar argued that the court didn't have the right to hear the case because the rules weren't followed properly, but the court decided that the rules were followed correctly.

The court also looked at if it was fair to declare Mr Kumar bankrupt. Smartpay Ltd said that Mr Kumar owed them a lot of money and it was important for other people who lent money to him to get it back. Mr Kumar said that he didn't have any money and it wouldn't be fair to him. The court decided that it was fair to declare Mr Kumar bankrupt because he owed a lot of money and it was important for other people to get their money back.

The court declared Mr Kumar bankrupt, which means that an official person will take care of his money and debts. The court also decided that Smartpay Ltd could ask for the money they are owed, plus some extra costs for the court case.

Orders