West v West - [2020] NZHC 261

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1512

[2020] NZHC 261

BETWEEN
GEOFFREY ALLAN WEST and DAVID JOHN CAMERON WEST

Judgment Creditors

AND

ALLAN JACK WEST

Judgment Debtor

Hearing: 21 November 2019

Appearances:

D Kerr for the Judgment Creditors

No appearance for the Judgment Debtor

Judgment:

25 February 2020

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 25 February 2020 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Bannister & Von Dadelszen Lawyers, Auckland

WEST v WEST [2020] NZHC 261 [25 February 2020]

[1] Geoffrey and David West seek an order for the adjudication of their father, Allan West.

[2] They are judgment creditors of their elderly father for $11,486 pursuant to a costs award made by me in a failed caveat proceeding, which he has not paid.1 They served him with a bankruptcy notice on 8 August 2019 to enforce the award, which he did not comply with; the result was that he has committed an act of bankruptcy pursuant to 17 of the Insolvency Act 2006.

[3] On 27 August 2019, the application for adjudication (made in reliance on the act of bankruptcy) was filed within the time allowed under s 13(b) and supported in the usual way by a brief verifying affidavit.

[4] The circumstances giving rise to the application are most unusual. Not only is Mr West the father of the applicants, he is not far off being a centenarian, being well into his 98th year. His sons (who are themselves getting on in years) have benefitted from his extraordinary generosity — he stripped himself of his assets by gifting his sons two valuable properties worth several millions — at a time when he was suffering from ill health at a very old age, and not expected to recover. None of this is disputed, as counsel for the sons quite reasonably acknowledged.

[5] But the relationship between father and sons subsequently deteriorated and Mr West embarked on fruitless litigation — the caveat proceeding and other separate proceedings (the separate proceedings) aimed at setting aside the gifting2 — which has cost himself and his sons dearly, and evidently been very irksome and distressing for them.3 The ongoing dispute now manifests itself in this bankruptcy proceeding. The sons say they have had enough and want the judgment debt paid or their father’s affairs put in the hands of the Official Assignee in the hope that something might be recovered

1      West v West [2019] NZHC 1605.
2      And related discovery issues.
3      West v West [2017] NZHC 3110; West v West [2018] NZHC 2723; and West v West [2018] NZHC 2787.

towards the judgment debt. Their counsel has repeatedly referred to the collateral benefit of adjudication — putting an end to Mr West’s threats of ongoing litigation.

[6] Mr West is clearly angered, to put it mildly, by his sons resorting…

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 West v West

Details

AGLC: West v West [2020] NZHC 261
Case: [2020] NZHC 261
Decision Date: 25 February 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Geoffrey Allan West and David John Cameron West, the sons of Allan Jack West, sought an order for the adjudication of their father as bankrupt. The sons had previously obtained a costs award against their father in a failed caveat proceeding, which he had not paid. They served him with a bankruptcy notice, which he did not comply with, resulting in an act of bankruptcy. The sons filed an application for adjudication, which was supported by an affidavit. The circumstances of the case were unusual, as the father had gifted his sons valuable properties when he was suffering from ill health at an advanced age. However, the relationship between the father and sons deteriorated, leading to fruitless litigation and the current bankruptcy proceeding. The sons sought adjudication to end their father's ongoing litigation and to potentially recover some funds towards the judgment debt.

The legal issues before the court were whether the jurisdictional requirements for an order of adjudication were met and whether it was just and equitable to make such an order. The jurisdictional requirements for adjudication were clearly met, as the father owed the sons a judgment debt, the debt met the threshold of $1,000, payment was overdue, and the father had committed an act of bankruptcy by failing to comply with the bankruptcy notice. However, the court had discretion under section 37(c) of the Insolvency Act 2006 to refuse to adjudicate the debtor if it was just and equitable to do so. The court considered the advanced age and poor health of the father, the context of the bitter dispute between immediate family, and the lack of any positive purpose that could not be achieved through the administration of the father's estate.

The court exercised its discretion not to make an order of adjudication, as it was just and equitable not to do so. The court acknowledged the sons' submissions that an investigation by the Official Assignee could conceivably unearth some funds owned by the father, which could be applied to reduce or even meet the judgment debt. However, the court found that the circumstances of the case warranted refusing adjudication, given the father's advanced age and poor health, the context of the bitter family dispute, and the lack of any positive purpose that could not be achieved through the administration of the father's estate. The court also noted that if the father's litigious conduct continued, it remained open to the sons to apply to have him treated as a vexatious litigant.

The court refused to make an order of adjudication, and there were no orders for costs.

Orders