Taxicharge New Zealand Limited, re HC Wellington CIV 2009-485-2553

[2010] NZHC 1834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-2553

IN THE MATTER OF     the Insolvency Act 2006

AND

IN THE MATTER OF     of the bankruptcy of VONRICK KERR Judgment Debtor

TAXICHARGE NEW ZEALAND LIMITED

Judgment Creditor

Hearing:         21 September 2010

Appearances: D. Lester - Counsel for Judgment Creditor

No appearance by or for the bankrupt Vonrick Kerr

Judgment:      21 September 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Maude & Miller, Solicitors, PO Box 213, Wellington

TAXICHARGE NEW ZEALAND LIMITED V V KERR HC WN CIV-2009-485-2553  21 September 2010

[1]      Before the Court is an application by Vonrick Kerr, (“Mr Kerr”), for an order to annul his adjudication in bankruptcy pursuant to s 309 Insolvency Act 2006.

[2]      On 23 August 2010 this matter was called in this Court and set down for a ½

day hearing before me today, 21 September 2010.   Mr Kerr was present on 23

August 2010 when the fixture was allocated and confirmed this date was a suitable one.

[3]      It is now 10.15 am today, 21 September 2010.   Ms Lester, counsel for the respondent, is present.  There is no appearance by or for the applicant, Mr Kerr.

[4]      The Registrar has endeavoured to contact Mr Kerr by telephone in the last few minutes, but there has been no answer, and she has simply been referred to his answering machine.

[5]      That said, the Court can only assume that Mr Kerr does not wish to pursue his present annulment application.  Notwithstanding this, I will turn to briefly deal with that application which is before the Court.  I do this mindful of the fact that the applicant, Mr Kerr, despite directions made in his presence on 23 August 2010 that his submissions in support of this application were to be filed and served by 15

September 2010, has not done so.   On 16 September 2010, Mr Kerr did file a document headed “Memorandum to Your Honour from Vonrick Kerr Applying to Correct Defect in Interlocutory Application dated 21 July 2010 and memorandum dated 11 August 2010” but this document effectively contains no submissions.  In addition Mr Kerr of course is not present today and so no oral submissions have been received from him.

[6]      Notwithstanding this, I proceed on the basis of the form of application made by the applicant Mr Kerr, the two memoranda he has filed, and the grounds advanced in those documents.

[7]      And, in particular I refer to the memorandum from Mr Kerr noted above filed in this Court on 16 September 2010.

[8]      That Memorandum, as I record, confirms that Mr Kerr wishes to correct defects  made  in  his  earlier  Interlocutory Application  dated  21 July 2010  which sought a “Discharge” or “suspension” of his adjudication until an appeal/review had been heard.  He proposed in that last Memorandum filed 16 September 2010 that the application now before the Court is one to annul the adjudication in terms of s 309

Insolvency Act 2006.

[9]      The grounds set out in that 16 September 2010 Memorandum by Mr Kerr are specified as follows:

(a)There  is  fresh  evidence  that  is  available  and  was  not  previously considered.

(b)       There is a change in circumstances.

(c)       He was neither present nor represented at the proceeding on 5 July

2010 when he was adjudicated bankrupt.

(d)The respondent provided allegedly false information to the Court at the hearing on 5 July 2010.

[10]     Nothing more than these bare assertions by Mr Kerr, are before the Court here.

[11]     Section 309(1) Insolvency Act 2006 sets out the grounds upon which the Court may annul an adjudication in bankruptcy.  The first ground under s 309(1)(a) requires the Court to be satisfied that “the bankrupt should not have been adjudicated bankrupt”.

[12]     The second and only other possible ground for annulling adjudication here would be in terms of s 309(1)(b) Insolvency Act 2006.  This requires the Court to be first satisfied that the bankrupt’s debts have been fully paid or satisfied and the Official Assignee’s fees and costs settled.

[13]     In this case, there is no doubt that s 309(1)(b) Insolvency Act 2006 does not apply.   The Official Assignee has filed a report dated 17 August 2010 which essentially confirms that the bankrupt’s  debts totalling about $21,000.00 remain unpaid and the bankrupt has not attended upon the Official Assignee despite efforts to make arrangements for this.   Also, Mr Kerr has not completed a statement of affairs as required under s 67 Insolvency Act 2006.   In addition the Official Assignee’s costs and disbursements in this matter have not been paid.

[14]     Turning to s 309(1)(a) Insolvency Act 2006, it is clear from the authorities that this provision should be interpreted narrowly – see Brookers Insolvency Law & Practice para IN309.05(1).   Generally this section will not provide grounds for interfering with a discretion exercised on a properly brought adjudication petition unless there was some defect in procedure, abuse of process or where some material fact was not brought before the Court making the adjudication order – Re Hunter Ex Parte CIR (2000)9 NZTC 15722.

[15]     In the present case, Mr Kerr in his Memorandum filed 16 September 2010 claims that “there is fresh evidence that was not previously considered” and “the respondent provided false information to the Court at the bankruptcy hearing on 5

July 2010.”  How Mr Kerr is able to make that last allegation, however, given that he did not appear on 5 July 2010 when Associate Judge Faire made the order for his adjudication must be the subject of some question.

[16]     In addition, there is no affidavit evidence or other material before the Court which in any way relates to these allegations made by Mr Kerr.   Nor before the Court are there any submissions providing detail of any kind from Mr Kerr, relating to these or any other matters.

[17]     Under all the circumstances here, I am satisfied there is nothing before the Court to justify any claim on behalf of the applicant Mr Kerr that the adjudication order made by Associate Judge Faire on 5 July 2010 should not have been made.

[18]     For  all  these  reasons  the  application  for  annulment  before  the  Court  is dismissed.

[19]     As to costs, if these may be relevant here, considering that the bankruptcy of the applicant will continue, costs are awarded to the respondent against the applicant on this unsuccessful annulment application on a Category 2B basis together with disbursements as fixed by the Registrar.

‘Associate Judge D.I. Gendall’