Upper Hutt City Council v Kent

[2018] NZHC 2634

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-256

[2018] NZHC 2634

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Harry Dale Kent

BETWEEN

UPPER HUTT CITY COUNCIL

Judgment Creditor

AND

HARRY DALE KENT

Judgment Debtor

Hearing:	9 October 2018
Appearances:	Ms Nicolette Levy for the judgment creditor Judgment debtor in person
Judgment:	10 October 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

This judgment was delivered by me on 10 October 2018 at 11.00 am, pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

UPPER HUTT CITY COUNCIL v KENT [2018] NZHC 2634 [10 October 2018]

[1]    The judgment creditor, the Upper Hutt City Council, applies for an order adjudicating the judgment debtor Harry Dale Kent, bankrupt. Mr Kent opposes the application.

[2]    The application was called in the commercial list on 9 October 2018. Having heard from both Ms Levy for the Council and Mr Kent, I reserved my judgment.

[3]    In judgments dated 18 August 2014 and 10 May 2017, this Court awarded costs to the Council against Mr Kent. The total amount of those costs was $17,878.80.

[4]    Based on those judgments, the Council applied for the issue of a bankruptcy notice. The affidavit evidence is that the bankruptcy notice was served on Mr Kent on 12 May 2018. Mr Kent filed documentation in response on 21 May 2018, which I directed be treated as an application to set the bankruptcy notice aside.

[5]    That application came on for hearing on 10 August 2018. In an oral judgment I dismissed Mr Kent’s application.

[6]    The Council then commenced this proceeding by filing and serving a creditor’s application supported by an affidavit verifying the same and a summons to the judgment debtor. The affidavit evidence is that the originating documentation was served on Mr Kent on 22 September 2017.

[7]    Mr Kent filed a notice of opposition and a supporting affidavit on 8 October 2018, the day before the hearing.

[8]    The Council’s application is made pursuant to s 13 of the Insolvency Act 2007 in reliance on Mr Kent’s failure to comply with the bankruptcy notice.

[9]    The Council’s papers all appeared to me to be in order, and Mr Kent did not contend otherwise.

[10]   I had some difficulty understanding Mr Kent’s grounds of opposition as set out in his notice of opposition and supporting affidavit, but in argument he focussed on three points.

[11]   First, and rather surprisingly, he maintained that the Council’s bankruptcy notice was never served on him. Not only does this contradict the affidavit evidence, it is inconsistent with his application to set the bankruptcy notice aside, which, as I say, I heard on 10 August 2018. I am satisfied that there is no real issue concerning service of the bankruptcy notice. Even if there were, it appears to me that Mr Kent must have submitted to the Court’s jurisdiction by applying for the setting aside of that notice. I reject this as a ground of opposition.

[12]   Second, Mr Kent advanced an argument that he had not been told by the judgment creditor how much was being claimed in costs. As I understood him, this was a reference to the costs award I made as part of my 10 August 2018 judgment dismissing his application to set aside the bankruptcy notice. This appears to me to be completely beside the point. I reject it as a basis for opposition to the Council’s application.

[13]   Finally, Mr Kent focussed — as he did in applying to set aside the bankruptcy notice — on the merits, or, as he would contend, the lack of merits, of the two underlying costs judgments. During the course of the hearing I explained, as best I was able, that it was not open to me to act as an appellate court in relation to those judgments. I record that they were not appealed and are not the subject of any stay.

[14]   Nothing which Mr Kent was able to say to me appeared to focus on any issue relevant to whether the Court should decline the Council’s application for an order adjudicating him bankrupt.

[15]   In those circumstances, I have no option but to allow the Council’s application and make an order adjudicating Harry Dale Kent  bankrupt  and  appoint  the  Official Assignee at Wellington to be the trustee of Mr Kent’s bankrupt estate.

[16]   The Council is entitled to its costs on a 2B basis together with disbursements which may be fixed by the Registrar.

[17]   This order is made at the time and date entered on the cover sheet by the Registrar.

Associate Judge Johnston