Tizzie's Limited v Wilson

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2016-441-122 [2017] NZHC 1657

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Gay Louise Wilson

BETWEEN

TIZZIEʼS LIMITED
Judgment creditor

AND

GAY LOUISE WILSON Judgment debtor

Hearing: 14 July 2017

Appearances:

T Manktelow for the judgment creditor
Ms G L Wilson in person

Judgment:

18 July 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]      The  judgment  creditor  (Tizzies)  applies  for  an  order  adjudicating  the judgment debtor (Mrs Wilson) bankrupt.

Background

[2]      On 26 July 2016 Tizzies obtained judgment by default against Mrs Wilson for

$24,673.16.  The nature of the claim by Tizzies against Mrs Wilson is not relevant to the present decision, as she acknowledges the debt and says she will pay it.  With interest  at  5%  per  annum  under  the  District  Court  Act  2016  calculated  up  to

31 May 2017, and costs in this court, the total debt is now said to be in excess of

$35,400.

[3]      Tizzies issued a bankruptcy notice against Mrs Wilson on 17 October 2016 in this  court  at  Napier.    The  bankruptcy  notice  was  served  on  Mrs  Wilson  on

TIZZIEʼS LIMITED v WILSON [2017] NZHC 1657 [18 July 2017]

26 October 2016, and any application Mrs Wilson might have wished to make had to be filed within 10 working days (by 9 November 2016).

[4]      Under the High Court Rules,1 any application by Mrs Wilson to set aside the bankruptcy notice was required to be made by formal interlocutory application with a  supporting  affidavit,  and  those  documents  were required  to  be  served  on  the judgment creditor within the 10 working day period.  No such application was filed by Mrs Wilson.

[5]      The court has no jurisdiction to extend the 10 working day period within which a judgment debtor may apply to set aside a bankruptcy notice.2    Mrs Wilson therefore  committed  an  act  of  bankruptcy  on  10  November  2016  when  the  10 working days period expired.

[6]      Tizzies filed an application for an order adjudicating Mrs Wilson bankrupt on

29   November   2016.     A  date   of   hearing   for   the   application   was   set   for

2 February 2017 in the Napier registry.  Mrs Wilson was served with the creditor’s

application and summons to debtor on 10 January 2017.

[7]      Prior to the hearing scheduled for 2 February 2017, Mrs Wilson made a written application for an order transferring the proceeding to the Palmerston North registry of the court.

[8]      When the matter was called on 2 February 2017, Mrs Wilson’s application to transfer the proceeding to the Palmerston North registry was not opposed.  I made an order for transfer accordingly, and directed Mrs Wilson to file and serve a formal notice of opposition and affidavit in opposition, by 16 February 2017.

[9]      Mrs Wilson duly filed a notice of opposition and affidavit by that date.  The notice  of  opposition   described   the  District   Court   judgment   entered   against Mrs Wilson as “totally flawed” and “out of order”.  Mrs Wilson denied that she was

a “debtor”, and stated:

1…

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Details
Case
[2017] NZHC 1657
Decision Date

CaseChat Overview and Summary

The judgment creditor, Tizzies Limited, applied for an order adjudging the judgment debtor, Mrs Gay Louise Wilson, bankrupt. The total debt owed to Tizzies was in excess of $35,400. Tizzies issued a bankruptcy notice against Mrs Wilson on 17 October 2016. Mrs Wilson did not file an application to set aside the bankruptcy notice within 10 working days. She subsequently filed an application for an order transferring the proceeding to the Palmerston North registry. The case was adjourned to 1 June 2017 and subsequently to 14 July 2017. Mrs Wilson applied for a final adjournment of the hearing to 15 September 2017. The issues for determination were whether the application should be further adjourned and whether the application should be dismissed.

Tizzies submitted that the application should not be adjourned as Mrs Wilson had had a reasonable time to pay the debt. Mrs Wilson submitted that she had been working very hard to organise the subdivisional works and that the court should grant her one final opportunity to pay. The court exercised its discretion under section 37 of the Insolvency Act 2006 and granted a final adjournment to 15 September 2017. The court made an order that the adjudication application would be dismissed if Tizzies had not been paid by 15 September 2017.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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