Westpac New Zealand Limited (1763882) v Anderson
[2021] NZHC 3074
•15 November 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-000347
[2021] NZHC 3074
BETWEEN WESTPAC NEW ZEALAND LIMITED (1763882)
PlaintiffAND
PATRICIA KARENIA ANDERSON
Defendant
Hearing: 11 November 2021 Appearances:
R G Smedley for Plaintiff
Judgment:
15 November 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 15 November 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WESTPAC NEW ZEALAND LTD (1763882) v ANDERSON [2021] NZHC 3074 [15 November 2021]
[1] On 24 June 2021, in related proceedings between these parties under CIV- 2016-409-373, Associate Judge Lester made orders on an interlocutory application by Westpac New Zealand Ltd (Westpac). These included that the judgment debtor, Mrs Anderson, was to pay Westpac costs and disbursements in the sum of $3,607 (the costs award).
[2]Mrs Anderson did not pay the costs award.
[3] On 5 August 2021, Westpac applied to this Court for the issue of a bankruptcy notice against Mrs Anderson in respect of the costs award. The bankruptcy notice was issued on 10 August 2021.
[4] Westpac says it served the bankruptcy notice on Mrs Anderson on 31 August 2021 in accordance with directions made by Venning J on 9 June 2021 in the related proceeding.
[5] On 15 October 2021, Mrs Anderson, who is self-represented, applied to set aside the bankruptcy notice. The application was set down to be heard in the Insolvency List on 11 November 2021.
[6] On 10 November 2021, I issued a minute that I would deal with the application at the end of the Insolvency List on 11 November 2021. That minute was forwarded by email to the parties. In the case of Mrs Anderson, it was sent to an email address provided by her. Her application does not provide a physical address for service.
[7] When the application was called on 11 November 2021, Mrs Anderson did not appear. I adjourned the application to be re-called later in the morning.
[8] When the application was re-called Ms Anderson still did not appear. Mr Smedley sought an order dismissing the application and indemnity costs.
[9] I was satisfied it was appropriate to make an order dismissing the application and did so. These are my reasons.
[10] First, as the applicant it is incumbent upon Mrs Anderson to prosecute her application. Before re-calling the application, I made enquires of the Registry and was advised that Mrs Anderson had notice of the hearing date, was sent my minute of 10 November 2021 and had not been in contact with the Registry to say she would not be appearing in Court. In the absence of any communication from her, Westpac was entitled to ask that the application be determined.
[11]Second, I am satisfied the application should be dismissed on its merits.
[12]Section 17 of the Insolvency Act 2006 relevantly provides:
17 Failure to comply with bankruptcy notice
(1) A debtor commits an act of bankruptcy if—
(a)a creditor has obtained a final judgment or a final order against the debtor for any amount; and
(b)execution of the judgment or order has not been halted by a court; and
(c)the debtor has been served with a bankruptcy notice; and
(d)the debtor has not, within the time limit specified in subsection (4),—
(i)complied with the requirements of the notice; or
(ii)satisfied the Court that he or she has a cross claim against the creditor.
(2) The form that the bankruptcy notice must take is set out in section 29.
(3) The debtor must have been served with the bankruptcy notice in New Zealand, unless the Court gave permission for the service of the notice on the debtor outside New Zealand.
(4) The time limit referred to in subsection (1)(d) is,—
(a)if the debtor is served with the bankruptcy notice in New Zealand, 10 working days after service; or
(b)if the debtor is served outside New Zealand, the time specified in the order of the Court permitting service outside New Zealand.
(5) In this section, a creditor who has obtained a final judgment or a final order includes a person who is for the time being entitled to enforce a final judgment or final order.
…
(7) In subsection (1)(d)(ii), cross claim means a counterclaim, set- off, or cross demand that—
(a)is equal to, or greater than, the judgment debt or the amount that the debtor has been ordered to pay; and
(b)the debtor could not use as a defence in the action or proceedings in which the judgment or the order, as the case may be, was obtained.
[13] In her notice of application, Mrs Anderson advances the following grounds in support of the application:
she is not insolvent;
(2)there are monies owed to her by Westpac that exceed the amount claimed by Westpac in the bankruptcy notice;
(3)that Westpac did not make it clear to the Court when obtaining the costs award that the “convention” or “course of dealings” in the related proceeding has been that costs should lie where they fall;
(4)the orders sought by Westpac which led to the making of the costs order were unnecessary; and
(5)that allocating costs “when incurred” prejudices justice in favour of Westpac and prevents Mrs Anderson from being able to defend herself.
In respect to these matters:
(1)Mrs Anderson’s solvency is not presently in issue but, in any event, there is no evidence as to her solvency.
(2)I do not accept that Mrs Anderson has a genuine and triable cross claim against Westpac. Mrs Anderson asserts that she is entitled to costs in the related proceeding. However, she is self-represented and cannot claim party-party costs. She has also claimed a filing fee and “Extension of Costs for Independent Report on Quantum” but there is insufficient evidence to suggest that Westpac has or may have any liability for these sums.
(3)There has been no convention or course of dealings in the related proceeding that costs would lie where they fall. In addition to the award made by Associate Judge Lester, there have been two other occasions where the Court has awarded costs against Mrs Anderson in that proceeding.1
(4)Mrs Anderson says the orders made by Associate Judge Lester were unnecessary and as a result of developments since, would not have been made. However, she filed no challenge to them, nor has she applied to vary the costs award.2
(5)While Mrs Anderson says awarding costs “when incurred” prejudices her, the presumption under the High Court Rules is that costs should be fixed and paid when an application is determined.3 This reflects the merits of particular applications and fairness is maintained as the rule can be departed from if special reasons exist.
[15] In these circumstances, it is not necessary to deal with Westpac’s argument that Mrs Anderson’s application must be dismissed as being out of time.
[16] As noted, Mr Smedley sought indemnity costs on the application, but I indicated to him I would not award them. On what is before me I cannot be satisfied Mrs Anderson made the application frivolously, vexatiously, in bad faith or that she is otherwise sufficiently blameworthy to reach the high threshold justifying such an award.
[17] In the alternative, Mr Smedley sought increased costs. In my view there is a good basis to award increased costs under r 14.6(3)(b)(ii) and (d) of the High Court Rules. Mrs Anderson’s application was unnecessary and lacked merit. In addition, it is unacceptable that she failed to appear at the hearing without explanation, putting
1 Westpac New Zealand Ltd v Anderson [2018] NZHC 1814 at [40(d)] and Westpac New Zealand Ltd v Anderson [2019] NZHC 979 at [70].
2 High Court Rules 2016, r 14.8.
3 Rule 14.8.
Westpac’s counsel needlessly to the time and effort of preparing in anticipation of argument on the application. Her actions, of course, unnecessarily added to Westpac’s costs.
Result
[18]It follows and I have ordered:
(1)Mrs Anderson’s application to set aside Westpac’s bankruptcy notice is dismissed.
[19] Westpac is awarded costs on a 2B basis with a 20 per cent uplift and reasonable disbursements (to be fixed by the Registrar).
O G Paulsen Associate Judge
Solicitors:
Anthony Harper, Christchurch
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