Wishart v Fetherston

[2013] NZHC 13

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2012-404-001596 [2013] NZHC 13

IN THE MATTER OF     the Insolvency Act 2006

AND

IN THE MATTER OF     the bankruptcy of Denis John Fetherston

BETWEEN  ALISTER JOHN WISHART, JENNIE MARGARET WISHART AND HARBOUR TRUSTEES LIMITED AS TRUSTEES OF THE WISHART FAMILY TRUST

Judgment Creditors

ANDDENIS JOHN FETHERSTON Judgment Debtor

Hearing:         24 January 2013

Appearances: P Hall for judgment creditors

No appearance for judgment debtor

Judgment:      24 January 2013

(ORAL) JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

P Hall, Simpson Western, BX10653, Takapuna, Auckland

WISHART & ORS V FETHERSTON HC AK CIV 2012-404-001596 [24 January 2013]

[1]      This  is  the  first  call  of this  application  for  adjudication.    The  judgment creditors wish to proceed today.

[2]      The application was served on the judgment debtor in accordance with orders for substituted service made on 21 November 2012.  The judgment debtor appears to have responded to the application by emailing a notice of intention to oppose.  This was emailed to the Court on 21 January 2013, purportedly signed by Mr J A R Cox as solicitor for the judgment debtor.  That same date an affidavit was sworn by the judgment debtor and the original was filed in the Court.  The original of the notice of intention to oppose has not been filed (or at least is not on the Court file), and there has been no appearance on behalf of the judgment debtor today.

[3]      The judgment creditors say that there is no valid basis for any opposition disclosed in the notice of opposition (or the affidavit of the debtor).

[4]      There appear to be two possible bases for opposition:

a)        The  debtor  has  set-offs  or  counter-claims  against  the  judgment creditors which exceed the judgment debt.

b)The debtor has applied to set aside the bankruptcy notice, but that application has not yet been determined.

[5]      I accept the submission of counsel for the judgment creditors that there is no obvious basis for any opposition, sufficient to warrant the matter going to a defended hearing.  The critical factor is that the debtor’s contentions have been disposed of by this  Court  on  an  opposed  application  to  set  aside the bankruptcy notice.    That application was determined by Associate Judge Sargisson on 14 September 2012. The alleged set-offs and counter-claims were either addressed (and rejected) at that time, or could have been raised but were not (to the extent that there is anything further than was dealt with by Associate Judge Sargisson).

[6]      I also take into account that the events on which the alleged set-off and counter-claims are based took place approximately a year and a half ago, yet the debtor has taken no steps to bring his claims before the Court.

[7]      The judgment  debtor  has  committed an  act  of  bankruptcy (by failing  to comply with the bankruptcy notice).  In the circumstances I am satisfied that there is no apparent basis for the Court to decline the judgment creditors’ application for adjudication based on that bankruptcy notice.

[8]      I make an order adjudicating the judgment debtor bankrupt.  The judgment creditors  are  also  entitled  to  costs  of  $4,356,  together  with  disbursements  of

$1,121.70.  These orders are made at 11.45am.

Associate Judge Abbott