Tararua District Council v Reid HC Wellington CIV-2009-454-622

[2010] NZHC 2346

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-454-622

UNDER  the Insolvency Act 2006

IN THE MATTER OF     the bankruptcy of JAMES ROBERT REID TARARUA DISTRICT COUNCIL

Judgment Creditor

Hearing:         4 March 2010

Appearances: D. Shepherd - Counsel for Plaintiff

Mr. J.R. Reid the defendant in person (at 11.20 am) Judgment:  4 March 2010

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Brookfields Lawyers, PO Box 240, Auckland

TARARUA DISTRICT COUNCIL V JR REID HC WN CIV-2009-454-622  4 March 2010

[1]      Before the Court today is an application by the judgment creditor to have the judgment debtor adjudicated bankrupt.

[2]      This matter was first called in this Court at around 10.30 am this morning.  At that time the judgment debtor was called.  There was no appearance by him.

[3]      Accordingly, I issued a Minute then making certain time table orders and setting down for hearing the bankruptcy application (which was opposed by the judgment debtor) at 2.15 pm on 23 April 2010.

[4]      At around 11.20 am this morning this matter was recalled as the judgment debtor, Mr. Reid, appeared in this Court.

[5]      Mr. Reid explained that he had been in the Palmerston North Court building all along but had been in another Court room at the time.   He apologised to this Court for his absence from the earlier call of this matter.  That apology is noted and accepted.

[6]      Mr. Reid then went on to indicate that in his view a hearing of this matter on

23 April 2010 is not required.  The reason for this, as I understand it, is that Mr. Reid has obtained a bank cheque from the Westpac Bank for $9,105.36, a copy of which he has annexed to his affidavit filed in this proceeding sworn 26 February 2010.  Mr. Reid states that this bank cheque, which is also dated 26 February 2010, would pay the amount claimed by the judgment creditor here and costs.

[7]      If required to make this payment to avoid bankruptcy Mr. Reid indicates that under protest he would do so but again he reiterates that the costs order which formed the earlier judgment the basis for this bankruptcy application are disputed and his appeal to the Court of Appeal against that earlier costs order is extant.

[8]      On the face of matters, it would certainly appear that if the amount claimed by the judgment creditor in its present application including costs is paid in full then there is of course no basis for the bankruptcy application against the judgment debtor to proceed.

[9]     Nevertheless, that payment has not as yet occurred.   That said, and notwithstanding the request from the judgment debtor that the hearing of this bankruptcy application set for 23 April 2010 should be vacated as he contends it is not required, I take the view that this hearing needs to remain in the mean time.

[10]     I confirm, therefore, that this matter is to be the subject of a hearing at 2.15 pm on 23 April 2010 (1/2 day is allowed if required).

[11]     In addition, I confirm that the time table orders made for the purposes of this hearing at paragraph [4] of my earlier Minute today, 4 March 2010 are to remain.

[12]     It goes without saying that if, in fact, the amount claimed by the judgment creditor on its present application together with costs is settled in the mean time, albeit under protest by the judgment debtor, then that 23 April 2010 hearing can be vacated.

[13]     And in conclusion, I repeat the earlier direction made today that leave is reserved for either party on 48 hours notice to approach the Court if additional or other directions may be required in this proceeding in the mean time.

‘Associate Judge D.I. Gendall’