IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002532
[2020] NZHC 2208
UNDER The Insolvency Act 2006 IN THE MATTER
of the bankruptcy of O L Evans
BETWEEN
TAILORED BUILDING SOLUTIONS LIMITED
Judgment Creditor
AND
OLIVER LLEWELLYN EVANS
Judgment Debtor
CIV-2019-404-002530 BETWEEN
TAILORED BUILDING SOLUTIONS LIMITED
Judgment CreditorAND
JADE EVANS
Judgment Debtor
Hearing: 17 August 2020 Appearances:
M R Taylor and E E Hill for the Judgment Creditor A C Eager for the Judgment Debtors
Judgment:
28 August 2020
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 28 August 2020 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
TAILORED BUILDING SOLUTIONS LTD v EVANS [2020] NZHC 2208 [28 August 2020]
Introduction
[1] Tailored Building Solutions Ltd (TBS) has applied for orders adjudicating Oliver Llewellyn Evans and Jade Evans bankrupt on the grounds that they have failed to pay the amount specified in a bankruptcy notice served upon them or enter into any arrangement and have therefore committed an available act of bankruptcy.
[2] Mr Evans opposes the making of an order of adjudication on the grounds that he is able to pay his debts and/or it is just and equitable that the Court does not make an order of adjudication. Ms Evans opposes on the basis that her husband (from whom she is now separated) is able to pay his debts, including the judgment debt. The judgment debt was incurred jointly by Mr and Mrs Evans. She can pay her own debts (apart from the judgment debt) and it is just and equitable that the Court does not make an order for adjudication.
[3]The issues are:
(a)Are Mr and Mrs Evans able to pay their debts?
(b)Is it just and equitable that the Court does not make an order of adjudication?
[4] In answering those questions, the Court must consider the relationship between the Construction Contracts Act 2002 (the CCA) and the Insolvency Act 2006.
Factual background
[5] In 2018 the judgment debtors, Mr and Mrs Evans, entered into a construction contract with TBS to complete the construction of their home at 80 Matthias Place, Whitford (the Property).
[6] TBS was engaged to continue and complete the building project after Mr and Mrs Evans terminated their contract with their former builder.
[7] Their building work continued through until 23 December 2018, when a dispute arose.
[8] Mr and Mrs Evans purported to terminate the contract on around 21 February 2019. It was TBS’s position that the purported termination was unlawful and amounted to repudiation. TBS terminated the contract on 25 February 2019.
[9] TBS had outstanding invoices which Mr and Mrs Evans refused to pay. They raised several issues with the invoices, which they said established a set-off of the amounts sought by TBS.
[10] TBS referred the matter to adjudication under the CCA. The parties filed submissions and evidence in relation to the claim by TBS, and…
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- [2020] NZHC 2208
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