Tannenberg Limited v Jellie - [2018] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002623 [2018] NZHC 1417

IN THE MATTER of the Insolvency Act 2006

AND IN THE MATTER

of the bankruptcy of CHRISTOPHER WAYNE JELLIE

BETWEEN

TANNENBERG LIMITED

Judgment Creditor

AND

CHRISTOPHER WAYNE JELLIE

Judgment Debtor

Hearing: 12 June 2018

Appearances:

C W Jellie (Judgment Debtor) Applicant for annulment (in person) R B Hucker for Judgment Creditor (Respondent)

C T Jones for Official Assignee

Judgment:

12 June 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

on annulment application

This judgment was delivered by me at Auckland on 12 June 2018 pursuant to Rule 11.3 of the High Court Rules

Registrar/Deputy Registrar

TANNENBERG LIMITED v JELLIE [2018] NZHC 1417 [12 June 2018]

Introduction

[1]Christopher Wayne Jellie was adjudicated bankrupt on 21 September 2017.

[2] He now applies for an order that his adjudication be annulled. He says that he should not have been adjudicated bankrupt.

[3] The application for Mr Jellie’s adjudication was made by Tannenberg Ltd (Tannenberg), a judgment creditor. In issuing its bankruptcy notice, Tannenberg had relied on a costs order made by this Court in September 2016. Tannenberg opposes Mr Jellie’s application for annulment.

[4] The Official Assignee has filed his report (and a supplementary report) as required under s 309 of the Insolvency Act 2006 (the Act). On the basis that Tannenberg has opposed the annulment application, the Assignee abides the Court’s decision. He records that none of the requirements for annulment under s 309(1)(b)–
(d) of the Act have been met. In the event the Court were to order annulment under s 309(1)(a) of the Act, the Assignee seeks an order for reasonable remuneration of his services, pursuant to s 309(5) of the Act (now over $5,700 on a time-costed basis).

Annulment on the s 309(1)(a) ground

The statutory jurisdiction

[5]Section 309(1)(a) of the Act relevantly provides:

309 Court may annul adjudication

(1)The court may, on the application of the Assignee or any person interested, annul the adjudication if—

(a)the court considers that the bankrupt should not have been adjudicated bankrupt…

(2)In the case of an application on one of the grounds specified in subsection (1)(a) to (c) by an applicant who is not the Assignee,—

(a)a copy of the application must be served on the Assignee in the manner and within the time that the court directs; and

(b)the Assignee may appear on the hearing of the application as if the Assignee were a party to the proceeding.

(3)The adjudication is annulled—

(a)from the date of adjudication, in the case of an application on the ground specified in subsection (1)(a):

(b)from the date of the court’s order of annulment, in the case of an application on one of the grounds specified in subsection (1)(b) to (d).

(4)In the case of an application for annulment on the ground that the adjudication should not have been made because of a defect in form or procedure, the court may, in addition to annulling the…

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.

Keep reading for free

Create a free CaseChat account to read Tannenberg Limited v Jellie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 1417
Decision Date: 12 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Tannenberg Limited applied for the adjudication of Christopher Wayne Jellie as bankrupt, which was subsequently granted. Jellie now seeks to have that adjudication annulled. The primary legal issue before the court was whether the adjudication should be annulled under section 309(1)(a) of the Insolvency Act 2006. The court examined whether the adjudication should not have been made, focusing on whether there was any procedural defect, bad notice, or abuse of process. The court found that there was no procedural defect, the notice was correctly issued, and the process was correctly carried out. Additionally, the court found that Jellie's lack of awareness of the hearing and the opportunity to pay did not constitute grounds for annulment. The court also dismissed other grounds raised by Jellie, including allegations of dishonesty and the "cross-claim" ground. The court concluded that Jellie had not established the grounds for annulment under section 309(1)(a) of the Act. Therefore, the application for annulment was dismissed. The court ordered Jellie to pay Tannenberg Limited's costs on a 2B basis, together with disbursements to be fixed by the Registrar. There was no order as to the costs of the Official Assignee's appearance at the hearing.

Orders