Tolich v Scarborough

[2015] NZHC 17

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003063 [2015] NZHC 17

IN THE MATTER OF

the Insolvency Act 2006

AND

IN THE MATTER OF

the Bankruptcy of Yasodhara da Silveira
Scarborough

BETWEEN

MARK NICOLAS TOLICH and ANNA LUCY NORCROSS Judgment Creditors

AND

YASODHARA DA SILVEIRA SCARBOROUGH

Judgment Debtor

Hearing:	21 January 2015
Appearances:	F J Peters for the Judgment Creditors Y D S Scarborough (self-represented Judgment Debtor) in Person
Judgment:	21 January 2015

JUDGMENT OF VENNING J

This judgment was delivered by Justice Venning on 21 January 2015 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Corban Revell, Auckland

Copy To:     Y D S Scarborough, Auckland

TOLICH and ANOR v SCARBOROUGH [2015] NZHC 17 [21 January 2015]

[1]      This is an application to set aside a bankruptcy notice issued by the judgment creditors against the judgment debtor.   The bankruptcy notice is based on a costs judgment obtained by the judgment creditors against the judgment debtor in the District Court at Waitakere.

[2]      The  judgment  debtor  applies  to  set  aside  the  bankruptcy  notice  on  the grounds  that  no  order  for  costs  should  have  been  made  against  her,  as  her proceedings should not have been accepted for filing in the District Court and that the order for costs has been obtained contrary to the judgment of Judge Bergseng in the District Court and without authority.

[3]      The  judgment  debtor  filed  proceedings  in  the  District  Court  against  the judgment creditors (and a further party) pursuant to s 42 of the Fair Trading Act 1986 seeking disclosure of documents from the named defendants. At a case management conference on 9 September 2014, before Judge Bergseng, orders were made striking out the proceedings on the basis they disclosed no reasonable cause of action.  In his reserved costs decision on 6 October 2014, Judge Bergseng dealt with the issue of costs,  implicitly finding  costs  were  due to  the  judgment  creditors,  noting as  to quantum as follows:

[19]     The defendant’s memorandum has been calculated on a 2B basis. They should be recalculated on a 2A basis and referred to the Registrar.

[4]      The judgment creditors then filed an amended costs order for sealing dated

14 October 2014.   The order was sealed on 15 October 2014 by Graham McKay, Deputy Registrar of the District Court.

[5]      The  judgment  debtor  first  complains  that  the  Registrar  in  the Waitakere District Court should not have accepted her documents for filing.  There is no merit in that submission.   It was dealt with by the Judge in the District Court.   The judgment debtor took the risk of managing the Court process.1     By commencing unmeritorious proceedings, the judgment debtor put the judgment creditors to the

costs of responding to the proceedings she had filed.

1      Oceanic Palms Ltd v Disputes Tribunal at Auckland 13 May 2005, Courtney J HC Auckland

CIV-2005-404-399.

[6]      Next, the judgment debtor argues that the costs order is invalid as it was completed by a Deputy Registrar, not the Registrar as directed by the Judge.  The short answer to that point is that the District Court Rules 2014 define Registrar to include Deputy Registrar.  It is inarguable that in this case the Deputy Registrar was entitled to exercise the authority of the Registrar and seal the costs order.  The same point applies to the judgment debtor’s complaint that a Deputy Registrar of this Court has issued the bankruptcy notice.

[7]      Next, the judgment debtor argues that no final judgment or final order has been issued in accordance with r 11.14 of the District Court Rules.  The judgment debtor is clearly aware of the substantive judgment of Judge Bergseng as to costs because she has attached it to her application to set aside the bankruptcy notice. While  there  is  no  evidence  that  the  costs  order  itself  was  served  on  her,  the bankruptcy notice clearly was.  Nevertheless, that is in any event of no effect as even if there was a requirement for the Registrar (or in this case the Deputy Registrar) to formally  advise  the  judgment  debtor  of  the  costs  order  r  11.14(6)  of  the District Court  Rules  confirms  that  the  failure  by  the  Registrar  to  comply  with r 11.14(3) to (5) does not affect the judgment’s validity (or in this case, the validity of the costs order).

[8]      In summary, the bankruptcy notice is properly based on a sealed costs order of the District Court.  The grounds advanced by the judgment debtor to set aside the bankruptcy notice are without merit. The application is itself dismissed.

[9]      The judgment creditors are entitled to costs on a 2B basis. The costs are to be fixed by the Registrar of this Court.

Venning J