Young v Joshi

[2013] NZHC 3453

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4110 [2013] NZHC 3453

UNDER  The Insolvency Act 2006

BETWEEN  AARON ROBERT YOUNG Judgment Creditor

ANDSANJAY KUMAR JOSHI Judgment Debtor

Hearing:                   16 December 2013

Appearances:           Mr C T Patterson for Judgment Creditor

Ms Mansell for Judgment Debtor

Judgment:                16 December 2013

ORALJUDGMENT OF ASSOCIATE JUDGE DOOGUE [Creditor's application for adjudication order]

YOUNG v JOSHI [2013] NZHC 3453 [16 December 2013]

[1]      The background to this matter is that there was scheduled for today a hearing of an application brought by the judgment creditor seeking an adjudication order of Mr Joshi.  The judgment creditor in his application stated that the ground was an act of bankruptcy arising from non-compliance with a bankruptcy notice served on him

9 September 2013 at 39 Woolfield Road, Papatoetoe, by a Mr Preece, a process server.

[2]     The judgment creditor further alleges that subsequently proceedings for adjudication were served upon Mr Joshi relying on the act of bankruptcy, which occurred 17 October 2013.  Mr Joshi denies that he committed an act of bankruptcy and specifically denies that he was served with the bankruptcy notice.  As it turns out, although this was not one of the grounds of opposition which he filed, he also denies that  he was  served  with  the subsequent  bankruptcy proceedings  that  are before  the  Court.     Evidence  was  however  called  concerning  service  of  the bankruptcy proceedings themselves.

[3]      There were three deponents who gave evidence bearing upon the central factual issues in this proceeding.  They were Mr Preece a process server who had given an affidavit that he served the bankruptcy notice, Ms Walters, another process server,  who  gave evidence that  she had  served  the bankruptcy proceedings  and finally Mr Joshi himself.  Mr Joshi denied that he was served with the bankruptcy notice.  He pointed to what he said was an error in Mr Preece’s affidavit alleging that he had served the bankruptcy notice at 37 Woolfield Road.  Mr Joshi said that was not his residence, he resided at 39 Woolfield Road.  He said that he was present at 39

Woolfield  Road  on  the  night  when  service  occurred  but  not  at  the  time  which Mr Preece alleged.   Mr Preece says service took place around about 7 p.m. and Mr Joshi says he was not back at the residence until approximately 7.30 p.m.

[4]      So far as the service of the bankruptcy proceedings is concerned, Ms Walters had said that she found out that Mr Joshi was going to be at the Manukau District Court on 17 October and made arrangements to go to the Court where she in fact encountered  him  and  served  him  with  the  documents.    Mr  Joshi  presented  as evidence a card from the District Court which he says is consistent with his evidence

that he was at the District Court on 18 October and not 17 October.  As I have said the  circumstances  of  the  service  of  the  substantive  proceeding  is  not  formally disputed but it does acquire some significance when it comes to resolving the evidential question in this proceeding.

[5]      The  evidential  question  arises  because  there  is  an  outright  conflict  of evidence  between  the  two  sides  which  has  to  be  confronted.    The  question  of whether Mr Joshi was served, like any other matter that needs proof, is required to be proved on the balance of probabilities.  Ms Mansell referred me to a decision of the High Court of Wilson J in Campbell v Campbell1 which suggests that the Court must proceed with care given the consequences that will flow from the making of an adjudication order.   I do not however read that decision as establishing that in the insolvency proceedings proof of service needs to be other than on a balance of

probabilities basis, albeit with proper care being taken to ensure that cogent and accurate evidence is available to prove that matter.

[6]      My conclusion is that in fact the bankruptcy notice was served as Mr Preece indicates.  It follows that I do not accept Mr Joshi’s account of matters.  My main reason for coming to this conclusion is that on his account of matters two separate process servers from different companies have made up their accounts of having served him with Court documents and then given purjurous evidence.  To my mind that is inherently unlikely and the only inescapable conclusion must be that it is Mr Joshi whose evidence is false.   A further issue, quite apart from the inherent improbability of two separate process servers giving perjurous evidence, is what motive they would  have to  do  so.    On the  other hand  Mr  Joshi  has  a  readily appreciable motive for giving wrong evidence about the subject.

[7]      A second and subsidiary matter or reason why I consider that there is support for the judgment creditor’s account of matters is that Mr Preece’s evidence was supported in what appeared initially to be an irrelevant detail at the time that he filed a report to his principal which was more or less contemporaneous with the service of the  bankruptcy  notice.     Mr  Preece  when  he  prepared  his  report  made  the

uncontroversial comment that he had left his business card with Mr Joshi and that of

1 Campbell v Campbell [1965] NZLR 653,655.

another person, Mr Freeman.   When Mr Preece made those remarks he could not have anticipated that the Freeman card would later have significance in evidence.  It is therefore very unlikely that he would have concocted a false report about that.  As it turned out when Mr Joshi gave evidence he volunteered that he had a copy of the card of Mr Freeman in his possession and that fits with the report that Mr Preece gave the day after he allegedly went to Mr Joshi’s residence meet him and served him with the papers.

[8]      The  point  of  dispute  about  the  evidence  of  service  of  the  bankruptcy proceedings arises from the Court card.  I have examined the card which Mr Joshi said was apparently completed by a staff member at the Manukau District Court. The  card  was  apparently  designed  to  be  handed  to  parties  and  other  interested persons advising them of the next date when the proceeding would be before the Court.  On the card that Mr Joshi says was handed to him was a date which looks like “18” October.   That document is of course a hearsay document, no doubt in appropriate circumstances such evidence is admissible, questions of weight are for the Court.  I have some doubts about the card because I agree with Mr Patterson that the card shows signs that the initial date on the card was changed.  That in my view diminishes the value of it.  I do not draw one conclusion which is open that it was Mr Joshi who changed it.  It could simply have been a matter of administrative error being made in the first part and changes being made later or the card as a whole being wrong.

[9]      For those reasons in my view, it is more likely than not that the evidence which has been given by the judgment creditor is correct.  It therefore follows that the bankruptcy notice was served and an act of bankruptcy was committed and the grounds which the judgment creditor relies upon have been made out.

[10]     This matter is adjourned to 27 February 2013 at 10 a.m.

J.P. Doogue

Associate Judge