Victoria Key Limited v Bastin HC Tauranga CIV-2011-470-193

[2011] NZHC 590

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-193

UNDER  the Insolvency Act

BETWEEN  VICTORIA KEY LIMITED Judgment Creditor

ANDKEVIN MAURICE BASTIN Judgment Debtor

Hearing:         17 June 2011

Appearances: Ms K McLeish for Judgment Creditor

Mr Bastin in person

Judgment:      17 June 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

Sharp Tudhope, Tauranga – by email: [email protected]

Mr Bastin c/o Brian Henry - [email protected]

VICTORIA KEY LIMITED V BASTIN HC TAU CIV-2011-470-193 17 June 2011

[1]      Mr Bastin appeared today in response to a summons to debtor.  I have some recollection of Mr Bastin’s immediate past history because I presided at one of the the cases that has resulted in his appearance here today.  There is no doubt that Mr Bastin  has  been  through  an  extremely  difficult  passage  in  the  last  few  years including the death of his brother who was at one point part of the proceedings which I had to decide.   However at the end of the legal process Mr Bastin was adjudged  in  March  of  this  year  to  be  indebted  to  the  plaintiff  in  the  sum  of

$169,534.66 together with other costs.  On the 15 March of this year a bankruptcy notice was served on Mr Bastin.   Now some three months later matters have proceeded to their inevitable conclusion, one could say, in that an application to adjudicate Mr Bastin has been filed.

[2]      The general approach the Court takes is that where an act of bankruptcy as been committed and there is no defence then an applicant is entitled to an order of adjudication.  It is not automatic of course and the Court overall must still consider the justice and equity of the case.  Sometimes issues of personal background of the creditor and of the motives and conduct of the creditor can be taken into account but generally the recognition is that bankruptcy proceedings are brought not as  a debt collection type device but rather are justified by the need to protect the commercial community from those who have not paid their debts.   In that context matters of personal background, no matter how unfortunate, and I have no issue at all about the great difficulties Mr Bastin has struggled with recently, will usually be of subsidiary importance.

[3]      The  judgment  has  to  be  taken  as  having  been  regularly  obtained.    The bankruptcy notice provided a warning that if it was not met this exact step which has been taken by the creditor would be taken.  In my view this is a case where the Court is required to issue an order of adjudication and that is what I propose to do.  Mr Bastin will be adjudicated bankrupt.  The creditor will have costs and disbursements.

The order is made at 10.25 a.m.

J P Doogue

Associate Judge