Van Workum v Crowther

[2012] NZHC 2545

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-007821 [2012] NZHC 2545

IN THE MATTER OF     the Insolvency Act 2006

BETWEEN  JOHANNA MARIA VAN WORKUM, ANDREW FRANCIS VAN WORKUM AND NIKKI BURLEY

Judgment Creditor

ANDRONALD (ALSO KNOWN AS ROWLEY) JOHN CROWTHER Judgment Debtor

Hearing:         2 October 2012

Appearances: N Carter for judgment creditor

G Denholm for judgment debtor

Judgment:      2 October 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

N Carter, Carter & Partners, PO Box 2137, Auckland

G W Halse, Foy & Halse, PO Box 26-2185, Auckland

Counsel:

G Denholm Barrister, PO Box 5080, Wellesley Street, Auckland 1141

JOHANNA MARIA VAN WORKUM, ANDREW FRANCIS VAN WORKUM AND NIKKI BURLEY V RONALD (ALSO KNOWN AS ROWLEY) JOHN CROWTHER HC AK CIV 2011-404-007821 [2 October

2012]

[1]      This is the first call of this application for adjudication, after the application was served pursuant to an order for substituted service.

[2]      The judgment debtor has filed notice of intention to oppose.  The essence of that opposition is that the bankruptcy notice is based on a determination of the Weathertight Homes Tribunal, and that he has a substantial ground of defence to that determination.   He says that he has filed an application to set aside the judgment registered in the District Court on the basis of that determination, and seeks a stay.

[3]      The substance of the opposition is that the debtor contends that he has valid grounds for resisting both the fact of the determination against him and the quantum of the determination.

[4]      One of the factors put forward in his opposition is that he has suffered a range of personal difficulties over the past 10 years, and that these have contributed to an inability to take proper steps to protect his own interests.  Initially I considered that that would be a proper basis for allowing adjournment.   However, after hearing submissions from Mr Carter for the judgment creditors, I have come to the view that there is no substance to this ground in the particular circumstances (in stating that, I do not wish to belittle matters that have occurred to the debtor in the past, but I see them as very much in the past).

[5]      The relevant factors in my view are:

(a)      The   bankruptcy   notice   derives   from   a   determination   of   the Weathertight Homes Tribunal on 15 July 2010.   That determination followed two days of hearings (in March and June 2010) at which the debtor appeared, and represented himself.

(b)      Mr Crowther did not appeal that determination.

(c)      After the creditors decided to proceed with enforcement, and issued the bankruptcy notice in December 2011, they were contacted by a solicitor acting for Mr Crowther, who asked for time to respond to the

notice, and to attempt to negotiate a solution.   The creditors agreed not to take any steps on the bankruptcy notice until the end of January

2012, and I understand from counsel that this was extended further and  that  the  parties  met  in  February  2012.    No  resolution  was achieved.

(d)After  that,  the  creditors  decided  to  pursue  their  rights  to  seek adjudication.  The debtor then elected not to cooperate over service, and  the  creditors  were  put  to  the  additional  time  and  expense  of seeking an order for substituted service.    This was despite correspondence with the solicitor who had previously been acting for the debtor, who endeavoured to obtain instructions from the debtor.

[6]      The view that I have reached is that the debtor has had ample time, and the ability, to have taken steps to challenge the determination of the Tribunal well before now.  He has chosen not to do so, or to give instructions to an experienced solicitor previously acting for him, who would have been able to advise him of his rights in that respect.  I consider that the last minute engagement of his present solicitors and counsel  is  simply  an  effort  to  delay proceedings.    If  there  is  any  merit  to  his contentions about the determination, those are matters that he can raise with the Official Assignee, who can bring an objective view point to the matter and support further steps if he feels they are merited.

[7]      The application for adjournment is declined.  I consider that there is no basis to the opposition filed. The creditor is entitled to proceed.

[8]      I make an order adjudicating the debtor bankrupt.  He is to pay costs to the creditor on a scale 2B basis, together with disbursements as fixed by the Registrar. Those costs are to include the application for substituted service.

[9]      This order is timed at 11.45am.

Associate Judge Abbott