Wharerama Enterprises Limited t/a Converge Coffee v Couper

[2015] NZHC 2654

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2015-483-000009 [2015] NZHC 2654

UNDER

The Insolvency Act 2006

IN THE MATTER OF

an application for adjudication

BETWEEN

WHARERAMA ENTERPRISES LIMITED TRADING AS CONVERGE COFFEE

Judgment Creditor

AND

GRAHAM COUPER Judgement Debtor

Hearing:	28 October 2015
Appearances:	M J Bullock for Judgment Creditor I R Burgess for Judgment Debtor
Judgment:	28 October 2015

ORAL JUDGMENT OF VENNING J

Solicitors:           JRT Lawyers, Whanganui

Robert Handley & Co Law Firm, Whanganui

WHARERAMA ENTERPRISES LTD v COUPER [2015] NZHC 2654 [28 October 2015]

[1]     This is an opposed application for adjudication.   The matter has some background to it.  Mr Couper sold his food truck caravan to the judgment creditor in July 2011.   The parties recorded their agreement on a standard sale and purchase agreement of a business agreement provided by the Auckland District Law Society form.  Mr Couper says the agreement was only for the sale of a mobile food trailer. Despite that the form included reference to restraint of trade.  The judgment creditor considered that when Mr Couper commenced another business in breach of that restraint of trade it was entitled to enforce its rights against him and pursue Mr Couper.

[2]      The matter eventually came before the referee of the Disputes Tribunal.  The referee found against Mr Couper finding the clause was enforceable on the basis Mr Couper had signed the agreement and also accepted the calculation of damages advanced by the judgment creditor.

[3]      That decision was delivered on 15 November 2013.   Mr Couper sought a rehearing  of  the  decision  having  taken  advice  and  having  received  advice  the decision was wrong.   The application for rehearing was declined on 31 January

2014.  Mr Couper took no further steps.  The judgment creditor then proceeded to register the judgment and pursue Mr Couper through these bankruptcy proceedings.

[4]      On 19 August this year in his absence Mr Couper was adjudicated bankrupt. However,   it   appears   the   non   appearance   that   day   was   as   a   result   of   a misunderstanding and a change in the time of the list.  On Mr Couper’s application the judgment creditor, (advised by Mr Bullock) properly not opposing, that order for adjudication was set aside on 24 August.

[5]      The matter has then been relisted today with the Associate Judge directing counsel to exchange submissions.   I have had the benefit of considering those submissions of counsel and have heard from Mr Burgess this morning and also briefly from Mr Bullock.

[6]      Essentially Mr Burgess’ point on behalf of the judgment debtor, Mr Couper, is that the Court should exercise its discretion under s 37 of the Insolvency Act 2006 and  decline  to  make  an  order  for  adjudication  in  order  to  right  what  he  has categorised as the previous injustices, being the decisions of the Disputes Tribunal.

[7]      I acknowledge that Mr Couper does not accept the decisions of the Disputes Tribunal.  Reading the file one can have some sympathy for the position Mr Couper has found himself in.  However it in part arises from the form of agreement that he signed, which on its face clearly referred to a restraint of trade clause and also referred to the need to take legal advice.

[8]      There  have  been  a  number  of  cases  of  this  Court  where  the  Court  has considered the status of decisions of the Disputes Tribunal in terms of potential appeals and judicial review.  In those cases:  Reekie v District Court;  NZI Insurance NZ Ltd v Auckland District Court; and Bayley Investments Trust v Salkeld1 the Court has observed the clear intention of the legislature in providing for the Disputes Tribunal was to provide a low cost, easily accessible dispute resolution, free from usual constraints.  The intention is to provide a speedy, cheap and informal means of resolving disputes for relatively small amounts which do not require oversight by

professional lawyers nor their involvement as advocates.

[9]      So while there is a right of review the Court would be reluctant, even on a judicial review, to set aside decisions of the Disputes Tribunal on the basis raised by Mr Burgess on behalf of the judgment debtor in this case.

[10]     I am also conscious of the time that has passed in this matter.  There must be finality in litigation.  I am not satisfied that this is a case where the Court ought to exercise its discretion and effectively ignore the judgment of the Disputes Tribunal, which it is being invited to do.  There are no other grounds put forward or advanced on behalf of Mr Couper to support the exercise of the discretion under s 37.   For

those reasons the opposition to the application for adjudication is dismissed.

1      Reekie v District Court [2015] NZHC 2045; NZI Insurance NZ Ltd v Auckland District Court

[1993] 3 NZLR 453 (HC); and Bayley Investments Trust v Salkeld [2003] NZAR 344 (HC).

[11]     I record counsel’s confirmation that the judgment sum is still outstanding. The amount claimed is owing.   In those circumstances the judgment debtor is adjudicated bankrupt.  He is to pay costs on a 2B basis together with disbursements.

The order for adjudication is timed at 10.30 am.

Venning J