Wootton v Wootton - [2021] NZHC 658

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-122

[2021] NZHC 658

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of MARGARET ANN WOOTTON

BETWEEN

PHILLIP GARRY WOOTTON

Judgment Creditor

AND

MARGARET ANN WOOTTON

Judgment Debtor

Hearing: (Determined on the papers)

Counsel:

E J Collins for the Judgment Creditor

Judgment:

30 March 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Dismissing application to review Registrar’s decision and interim decision in relation to costs)

This judgment was delivered by me on 30 March 2021 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 30 March 2021

WOOTTON v WOOTTON [2021] NZHC 658 [30 March 2021]

[1] On 11 December 2020, the Supreme Court ordered costs of $2,500 in favour of the judgment creditor, Mr Wootton.1

[2] On 10 March 2021, the judgment creditor filed a request for the issue of a bankruptcy notice. The bankruptcy notice sought the full award of costs of $2,500.

[3] The bankruptcy notice was served on 23 March 2021. On 25 March 2021, the judgment creditor paid the amount of the costs award.

[4] The bankruptcy notice records that the judgment creditor claims costs against the judgment debtor of $668, being a fee of $478 for filing the bankruptcy notice and a fee of $190 for serving the bankruptcy notice.

[5] Having paid the costs award, the judgment debtor has filed two documents. The first document is a notice of payment and request to the Court to fix costs – the costs sought in the bankruptcy notice being disputed by the debtor. The second document is an interlocutory application on a without notice basis to review the Registrar’s decision to accept the filing of the bankruptcy notice.

[6] It is necessary to provide more detail of the events between the costs award and the payment made on 25 March 2021.

[7] The judgment debtor says in her application, albeit without an affidavit in support, that on 22 January 2021, New Zealand Post tracking records confirms a package was couriered to the judgment creditor. The envelope included a bank cheque for $1,505 and apparently a note which read: “Hello Phil, the enclosed [cheque] is in part payment of [the] Supreme Court costs award from Margaret.” As will become clear, the cheque in part payment was not accepted. Hence, the request for the bankruptcy notice on 10 March 2021 asserted the full Court ordered costs of
$2,500 was outstanding.

[8] On 17 March 2021, the judgment creditor’s solicitor wrote to the judgment debtor referring to the cheque tendered in part payment stating:

1 Wootton v Wootton [2020] NZSC 142.

3.Mr Wootton does not accept part payment and we are now returning the cheque for you to take back to ANZ and recover the funds. Mr Wootton is only prepared to receive the full amount of $2,500.00 plus the costs for the preparation and filing fee of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wootton v Wootton

Details

AGLC: Wootton v Wootton [2021] NZHC 658
Case: [2021] NZHC 658
Decision Date: 30 March 2021

CaseChat Overview and Summary

The case of Wootton v Wootton concerns the bankruptcy proceedings of Margaret Ann Wootton, the judgment debtor, who has been ordered to pay costs to Phillip Garry Wootton, the judgment creditor, following a decision by the Supreme Court. The central issue in this case was whether the Registrar was correct in accepting the filing of a bankruptcy notice by the judgment creditor and whether the debtor's application to review the Registrar's decision should be granted. The judgment debtor argued that the Registrar should have recognised that the amount outstanding was below the $1,000 threshold for the issuance of a bankruptcy notice. The debtor's application was based on a cheque she had sent in partial payment of the costs award, which was not accepted by the judgment creditor until several weeks later.

The court had to determine whether the Registrar's acceptance of the bankruptcy notice filing was appropriate, given that the Registrar had no knowledge of the part payment made by the debtor. Additionally, the court needed to consider whether the departure from the specified service fee in the form of the bankruptcy notice was valid under the High Court Rules. The debtor's application also raised concerns about the delay in the judgment creditor's rejection of the cheque, which could potentially be seen as an acceptance of the part payment.

The court found that the Registrar acted appropriately in accepting the filing of the bankruptcy notice, as there was no way for the Registrar to know about the part payment made by the debtor. Variations to the form of the bankruptcy notice, such as the service fee, were permissible under the High Court Rules. However, the court noted that the judgment creditor's delay in rejecting the cheque in part payment could have significant implications for the issue of costs. The court emphasised that if the judgment creditor wished to pursue costs, they would need to address the delay in rejecting the cheque and explain why it should not be considered as acceptance of the part payment. The court reserved the issue of costs until the judgment creditor clarified their position.

The final orders of the court were to dismiss the application to review the Registrar’s decision to accept the filing of the bankruptcy notice. The judgment creditor was instructed to respond within ten working days regarding their intention to pursue costs, and if they chose not to do so, they were to file a memorandum to that effect. The court indicated that the Registrar would then refer the file to the judge if necessary.

Orders