Warin v Warin - [2019] NZHC 909

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2570

[2019] NZHC 909

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of Colleen Anne Warin and an application to set aside a bankruptcy notice

BETWEEN

MARIAN RUTH WARIN

Judgment Creditor

AND

COLLEEN ANNE WARIN

Judgment Debtor

Hearing: 29 April 2019

Appearances:

M W Anderson for the Judgment Creditor Colleen Anne Warin, Judgment Debtor in person

Judgment:

7 May 2019

INTERIM JUDGMENT OF ASSOCIATE JUDGE R M BELL

This interim judgment was delivered by me on 7 May 2019 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules.

…………………………………
Deputy Registrar

Solicitors:
Thomas Dewar Sziranyi Letts (M W Anderson), Wellington, for the Judgment Creditor
Copy for:
Colleen Anne Warin, PO Box 519, Oneroa, Waikehe Island, Auckland

MARIAN RUTH WARIN v COLLEEN ANNE WARIN [2019] NZHC 909 [7 May 2019]

[1] Colleen Anne Warin, the judgment debtor, applies to set aside the bankruptcy notice of her mother, Marian Ruth Warin. The amount payable under the bankruptcy notice is $206,078.83. It is based on a judgment debt of $191,984.33 given in the High Court at Wellington on 26 April 2017,1 plus interest on the judgment. Colleen was served on 3 December 2018. She filed and served her application on 17 December 2018. The application is within time. Under r 24.10 of the High Court Rules 2016, the time for complying with the notice has been extended until her setting-aside application is decided. Colleen has appeared for herself. She did have legal representation in the proceeding in which judgment was given against her and she has had some legal advice since the judgment was given against her.

[2] Marian now lives with her son, Nigel, in Midland, Perth, Western Australia, although in the entituling her address is given as her former home in Te Puke. Marian is 88 years old. Colleen says that Marian lacks capacity and is under the control and influence of Nigel.

[3] Colleen’s application to set aside the bankruptcy notice is wide-ranging, but the main points are these:

(a)She says that Marian lacks capacity and that Nigel has undue influence over her, which he uses for his own personal benefit.

(b)Colleen wants to cross-examine Marian to establish her lack of capacity.

(c)The lawyers acting for Marian failed to disclose that Marian left New Zealand in December 2016.

(d)Colleen ought not to have to pay interest on the debt.

1 Warin v Warin [2017] NZHC 786.

(e)An adjudication in bankruptcy would cause Colleen undue hardship. While she has assets, she has not been able to sell them at prices that would enable her to clear her indebtedness.

Background

[4] Colleen is the only daughter of Marian and Trevor Warin. She has two brothers, Wayne and Nigel. Trevor is in his nineties and has dementia. Wayne holds an enduring power of attorney for him. Nigel has lived in Western Australia for over 20 years and has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Warin v Warin

Details

AGLC: Warin v Warin [2019] NZHC 909
Case: [2019] NZHC 909
Decision Date: 7 May 2019

CaseChat Overview and Summary

Colleen Anne Warin applied to set aside a bankruptcy notice issued by her mother, Marian Ruth Warin, in respect of a judgment debt of $206,078.83. The main points of Colleen's application were that Marian lacked capacity, that Nigel had undue influence over her, that the lawyers acting for Marian failed to disclose that Marian left New Zealand in December 2016, that Colleen ought not to have to pay interest on the debt, and that an adjudication in bankruptcy would cause Colleen undue hardship. The court found that the finality of the judgment of 26 April 2017, the claim for interest, and Marian's address in the bankruptcy notice were not valid grounds for setting aside the bankruptcy notice. The court also found that the challenge to Marian's capacity was not enough to make an affirmative finding that Marian was incapacitated, but it was enough to suggest that the matter should be checked. The court adjourned the hearing to allow medical evidence to be filed on Marian's capacity. The court gave directions that the time for complying with the bankruptcy notice had not yet expired, that if Colleen wished to make any payments under the notice, they were to be made at Marian's address for service, and that costs were reserved pending a final decision on the setting aside application.

Orders