Thwaite v Moran HC Auckland CIV-2010-419-1504

[2011] NZHC 1193

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-419-1504

UNDER  The Insolvency Act 2006

BETWEEN  DAVID T THWAITE Plaintiff

ANDSTEPHEN ANTHONY MORAN Defendant

Hearing:         5 October 2011

Appearances: No appearance for applicant

Mr G Thwaite for respondent

Judgment:      5 October 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors:

G Thwaite, P O Box 6239, Wellesley Street, Auckland –  [email protected]

Mr S A Moran, 16 Kopuku Road, R D 1, Te Kauwhata

THWAITE V MORAN HC AK CIV-2010-419-1504 5 October 2011

[1]      This matter has been before the Court on a number of occasions.   It was called today and there was no appearance for the applicant.  Mr Thwaite has been in touch with him and tells me that the applicant knew that the proceeding was on for hearing today.

[2]      The application is based upon the fact that the District Court judgment dated

5 November 2004 ought not to have been entered.  That issue has been explored by proceedings taken to test that question in the District Court.  The applicant has been unsuccessful and the judgment remains in place.  It is correct that other grounds are asserted in the application for order setting aside statutory demand but the judgment issue is the central one.  As the judgment has not been set aside there is very little prospect,  as  Judge  Osborne  noted  at  a  previous  calling  of  this  matter,  that  the statutory demand would be set aside.  Further, there is the fact that the applicant has not appeared in support of his application today.   I see no reason why the usual consequence should not follow and the application is dismissed.  I make an order to that  effect  and  I direct  the  applicant  to  pay costs  on  a 2B  basis  together  with

disbursements to be fixed by the Registrar.

J.P. Doogue

Associate Judge