Utopia Developments Ltd v Ryong HC Tauranga CIV-2009-470-001076

[2010] NZHC 2325

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2009-470-001076

BETWEEN  UTOPIA DEVELOPMENTS LTD Judgment Creditor

ANDHANG JUNG RYONG Judgment Debtor

Hearing:         9 December 2010

Appearances: S J Hartnett for the Judgment Creditor

No Appearance by or for the Judgment Debtor

Judgment:      21 December 2010 at 10.00 am

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 21 December 2010 at 10.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date

Solicitors/Counsel:
S J Harnett, Jackson Reeves Lawyers, PO Box 243, Tauranga 3140

Copy:    Legal Support Services, Auckland – by email: ly[email protected]

Mr H Ryong, 30 Sherwood Avenue, Te Atatu South, Waitakere, Auckland 0610

UTOPIA DEVELOPMENTS LTD V HANG JUNG RYONG HC TAU CIV-2009-470-001076  21 December

2010

[1]      The judgment creditor commenced proceedings against the judgment debtor in December 2009.   An amended claim was filed in March 2010.   The judgment debtor took no steps, and the matter proceeded by way of formal proof before Clifford J on 26 May 2010.  He gave judgment in favour of the judgment creditor in the sum of $80,821.34.

[2]      Judgment was sealed on 4 June 2010 and a charging order was filed over land owned by the judgment debtor on 5 July 2010.

[3]      An order for examination of the judgment debtor was made on 13 July 2010. He was required to attend at the High Court at Tauranga for examination on Wednesday 13 October 2010 at 2.15 pm.  He failed to attend on that date, and on

13 October 2010, Associate Judge Doogue directed:

a)        That an arrest order be issued in respect of the judgment debtor;

b)That the arrest order be suspended provided that the judgment debtor attended at the High Court at Tauranga on Friday 12 November 2010 at 12.15 pm and complied with the order for examination at that date, or on any date to which the examination was adjourned.

[4]      An interlocutory order reflecting these directions was sealed.   Service was affected on Thursday 11 November 2010 at 10.05 pm.  An affidavit of service has been filed with the Court.

[5]      The judgment debtor did not attend the Court on 12 November 2010.

[6]      In order to give the judgment debtor one last chance to comply with the Court’s  directions,  Associate  Judge  Doogue  varied  the  terms  of  the  order.    He directed that the arrest order was to be suspended provided that the judgment debtor attended at the High Court at Tauranga on Friday 10 December 2010 at 2.15 pm.

[7]      Counsel has raised an issue as to an Associate Judge’s powers to issue an arrest warrant.   Pursuant to s 26I(1)(ea) of the Judicature Act 1908, an Associate

Judge does not have the power to make an arrest order or an order relating to an arrest order.

[8]      As a result, the matter was brought before me on 9 December 2010.

[9]      At that stage, there was no up-to-date affidavit confirming whether or not the judgment debtor had complied with the earlier Court order and paid the judgment debt either in whole or in part.  I requested that an affidavit be filed to comply with r 17.18(3) of the High Court Rules.  That affidavit has now been sworn.  It records that no part of the judgment debt has been paid, and that the amount due and owing is $81,421.34.

[10]     I am satisfied that the judgment debtor failed to attend the examination.  I am also satisfied that the judgment debt remains unpaid.   Accordingly, I direct that a warrant for the judgment debtor’s arrest be issued.   The arrest order is suspended provided the judgment debtor attends at the High Court at Tauranga on 3 February

2011 at 10.00 am, and complies with the order for examination at that date, or on any date to which the examination is adjourned.  If the judgment debtor fails to comply with the terms on which the arrest order is suspended, the arrest order can be sealed for execution.  In this regard, I confirm the draft arrest order filed by the judgment creditor.

[11]     If the judgment debtor pays the judgment debt in the interim, then the arrest order is to be rescinded.

Wylie J