Westpac New Zealand Limited v Jones

[2013] NZHC 17

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2012-404-003971 [2013] NZHC 17

IN THE MATTER OF     the Insolvency Act 2006

AND IN THE MATTER OF the bankruptcy of Philip Ronald Jones

BETWEEN  WESTPAC NEW ZEALAND LIMITED Judgment Creditor

ANDPHILIP RONALD JONES Judgment Debtor

CIV2012-404-004983 [2013] NZHC 17

AND IN THE MATTER OF the Insolvency Act 2006
AND IN THE MATTER OF the bankruptcy of Philip Ronald Jones

BETWEEN  STEVEN DAVID GOODEY Judgment Creditor

ANDPHILIP RONALD JONES Judgment Debtor

Hearing:         24 January 2013

Appearances: L Lim for judgment creditor, Westpac New Zealand Ltd

E Grove for judgment creditor, S D Goodey
E Shinkarenko for judgment debtor, P R Jones, on both matters

Judgment:      24 January 2013

(ORAL) JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

B J Upton/ L M L Lim, Simpson Grierson, Private Bag 92518, Auckland

P C Ganda, Ganda & Associates, P O Box 27227, Auckland

E Grove, Christopher Patterson Barrister, PO Box 2886, Auckland

Counsel:

G Harrison, PO Box 5444, Auckland

A Shinkarenko, PO Box 5444, Wellesley Street, Auckland 1141

WESTPAC NEW ZEALAND LIMITED V PHILIP RONALD JONES HC AK CIV 2012-404-003971 [24

January 2013]

[1]      This is the second call of these two applications.  The judgment debtor has taken no steps, but has  sought time previously to pay the debt of the creditor, Westpac New Zealand Ltd.  He has also indicated that he disputes the application by the judgment creditor, S D Goodey (which is currently the subject of an opposed application for summary judgment).

[2]      Both creditors wish to proceed on their applications today.  The debtor seeks a further and final short adjournment to the week of 11 February 2013.

[3]      The essence of the debtor’s position is that he is engaged in a commercial transaction which is due to complete in the near future, and when it does it will generate substantial commissions for him which will enable him to clear the debt of Westpac New Zealand Ltd.  He opposes the application by the creditor, Mr Goodey, on the basis that there is still a dispute over it – although there is no evidence before me as to what that dispute is and I am advised by Mr Grove that Mr Goodey has a judgment against the debtor.

[4]      At the time of the first call (on 11 December 2012) I allowed an adjournment on the basis that there would be no further adjournment unless the debtor had filed cogent and concrete evidence as to the likelihood of funds becoming available, and as to the timing of any payment.  I said that that evidence would need to emanate from the source of the payment, and be in some verifiable form.  No such evidence has been filed.

[5]      Counsel  for  the  debtor  has  filed  a  memorandum  contending  that  the transaction on which Mr Jones relies will close within the next seven days, and immediately following receipt of funds the two creditors will be paid what they are owed.  I add at this point that that is a total sum in excess of $1.2M.

[6]     Counsel, in the memorandum supporting the request for adjournment, acknowledged the terms of the last adjournment, but sought the further adjournment

on the basis that if the funds had not been paid out by then he accepted no further grounds could be advanced in support of yet further adjournment.

[7]      Both creditors wish to proceed.  Essentially they say that there is simply no evidence before the Court to support the debtor’s contention that he will be receiving funds  which  will  allow  him  to  clear  these  debts.     In  support  of  Westpac’s application, evidence has been filed calling into question the reality of the debtor’s contention that he is likely to receive funds of the order required.  That evidence was filed at the time of the last call, and was one of the factors leading to the stipulation that the debtor provide cogent evidence before this call.

[8]      Counsel, in the memorandum in support of the adjournment, has also alluded to  difficulties  facing  the debtor  about  disclosing  any information,  as  that  could imperil the transaction said to be giving rise to the funds.   The difficulty for the Court is that there again is simply no evidence even of this contention.  In short, the debtor has failed to provide any evidence of any sort.  Counsel offered to hand up further correspondence (some was produced at the last hearing).  However, that is not what was required last time, and does not, in my view, provide the kind of support that is needed (and was directed last time).

[9]      The application for adjournment is declined.

Associate Judge Abbott