Tepania v BWH Holdings Limited HC Auckland CIV-2011-404-5777
[2011] NZHC 2105
•6 December 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-5777
UNDER the Insolvency Act 2006
IN THE MATTER OF the bankruptcy of John Tepania
BETWEEN JOHN TEPANIA Judgment Debtor
ANDBWH HOLDINGS LIMITED Judgment Creditor
Hearing: 6 December 2011
Appearances: Mr Farrands for creditor
No appearance for debtor
Judgment: 6 December 2011
ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE
Solicitors:
Morrison Kent, P O Box 222, Auckland - by email:
Copy:
Mr J Tepania, 342 Ara Kotinga, Brookby, Manukau 2576 – by email:
TEPANIA V BWH HOLDINGS LIMITED HC AK CIV-2011-404-5777 [6 December 2011]
[1] The debtor did not appear today. Mr Farrands for the creditor sought to proceed. Mr Tepania has not taken any steps to oppose the bankruptcy proceeding which is based on a debt of approximately $130,000. He has sent to the Court a letter and as well a medical certificate. The medical certificate does not disclose any reasons why he would not be able to attend Court today. The certificate does go on however to tell the Court in some helpful detail about the medical conditions that Mr Tepania is suffering from. Perhaps the most significant of these at the present time is his depression. Mr Tepania himself says in a letter that he sent to the Court that he has taken serious steps to attempt to meet the amount of his debts. He is on a sickness benefit. All of that information is of course sworn. Unfortunately there is no exception made for persons who are not well in the way that Mr Tepania has to excuse them from compliance with the rules and filing a notice of opposition to any bankruptcy proceedings. Assuming that the circumstances disclosed in Mr Tepania’s letter are correct one has considerable sympathy for him but there is a proper path to follow when seeking to avoid adjudication on the grounds that the Court should exercise its discretion in favour of the debtor which is the only ground which I can see in this case might arguably have been advanced by Mr Tepania if the matters in his letter were correct. But he has not done this and he has not explained why he has not done that and I consider that the judgment creditor is entitled to insist on the right to proceed given that the rules have not been complied with by the debtor.
[2] The final matter I mention is that Mr Tepania says that he is “embarrassed to ask the Court if I (can) make instalments to cover court costs”. The Court is not in a position to compel a creditor to accept a compromise arrangement of any kind, that is the prerogative of the parties to determine. It is really a case of a vague proposal being put forward very late in the day and I am afraid it is too late. There will be an order adjudicating Mr Tepania bankrupt. The order is made at 10.53 a.m. The
creditor will have costs and disbursements
J.P. Doogue
Associate Judge
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