Wheldale v TSB Bank Limited

[2014] NZHC 995

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000082 [2014] NZHC 995

IN THE MATTER OF	The Insolvency Act 2006
BETWEEN	ALLEN JOHN WHELDALE Applicant
AND	TSB BANK LIMITED Respondent

Hearing:	9 May 2014
Appearances:	No appearance for applicant
Judgment:	14 May 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

14.05.14 at 12 noon, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

WHELDALE v TSB BANK LIMITED [2014] NZHC 995 [14 May 2014]

[1]      This originating application for order to set aside  bankruptcy notice was called for a defended hearing today – 9 May 2014.  There was no appearance by the applicant.

[2]      On a previous occasion on 13 March the applicant did not appear either and the proceeding was dealt with in his absence.   The Court allocated a fixture to be heard on 1 May 2014 and the proceeding was adjourned to that date.

[3]      On 1 May the applicant failed to appear.  He sent a letter to the Court which apparently asserted that he had some medical problems.  Later on that day he sent to the Court what Smith AJ described as an “inadequate” medical certificate.

[4]      The Judge then made this order:

[5]     I am prepared to adjourn the hearing on this occasion, but only until

10 a.m. on Friday 9 2014, by which time the applicant’s medical practitioner has stated that he “should be able to return”.

[5]      The Judge warned the applicant that it would be unlikely that there would be further adjournments.

[6]      When the applicant had not appeared by 10.15 today I vacated the hearing and reserved my decision with the intention that a judgment should issue shortly thereafter.

[7]      Whether the matter is decided under r 7.40 or under Part 10 of the High Court Rules which relate to trial, I am in no doubt that the Court has power where the applicant does not attend to strike the proceeding out.  It is my intention to strike out the proceeding and award costs.

[8]      I am reinforced in that view the view that that is the appropriate course to take by the fact that the application Mr Wheldale has brought is without merit. Briefly, Mr Wheldale claims that the bank which is suing him for the unrecovered balance of loans, interests and costs following a mortgagee sale was in breach of its contract with him.  He alleged that the bank had transferred money from one account

to another without his authority.  In this way credit amounts held to Mr Wheldale’s

credit were appropriated to accounts which were in debit.

[9]      Mr Wheldale’s view is misconceived because as the bank has established under clause 25(d) of the relevant loan agreements the bank has power to do just what it did.

[10]     In  any case,  I am not  satisfied that Mr Wheldale has a claim which he genuinely intends to bring which claim would meet or exceed the judgment debt.1

[11]     Further, Mr Wheldale’s claim, as Ms Anderson submitted, falls outside the definition of “cross-claim” in section 17(7) of the Insolvency Act 2006 because he could  have,  and  indeed  should  have,  attempted  to  raise  it  as  a  defence  to  the summary judgment application that lead to the judgment debt.  Mr Wheldale has not provided any evidence which suggests that he was under a qualifying inability to raise the alleged breach of the contract as a cross-claim at the summary judgment hearing.

[12]     For all of those reasons I consider that the originating application ought to be dismissed and it is.   The  plaintiff will have costs on a 2B basis together with

disbursements as fixed by the Registrar.

J.P. Doogue

Associate Judge

1 Cockrell v Ward [2013] NZHC 2368 (Associate Judge Doogue).