ASL MORTGAGES LIMITED V NIVEN HC AK CIV 2008-404-005306

ASL MORTGAGES LIMITED V NIVEN HC AK CIV 2008-404-005306

Creditor established an outstanding debt and an available act of bankruptcy (failure to comply with the bankruptcy notice), and valuation evidence demonstrated that ASL's security was insufficient (shortfall of at least approximately $300,000); consequently there was no basis to resist adjudication and the debtor was adjudicated bankrupt.

Citation
openlaw-cef1d873_e42c_4fac_af20_c5f49ac8d9fa.pdf
Parties
Judgment Creditor: ASL Mortgages Limited; Judgment Debtor: John Andrew Niven
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 March 2009
Procedural Posture
Adjudication for Bankruptcy Under the Insolvency Act 2006 / Hearing on Application for Adjudication (oral Judgment)
Outcome
Order adjudicating John Andrew Niven bankrupt
Legal Topics
Adjudication, Bankruptcy Notice, Realisation of Security, Valuation, Delay in Sale/management
Insolvency Bankruptcy Property Law Commercial Law Adjudication Bankruptcy Notice Realisation of Security Valuation +1 more

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Parties

ASL Mortgages Limited

Judgment Creditor

John Andrew Niven

Judgment Debtor

Procedural Posture

Adjudication for Bankruptcy Under the Insolvency Act 2006 / Hearing on Application for Adjudication (oral Judgment)

Legal Issues

  1. 1 Whether creditor holds security exceeding the judgment debt sufficient to oppose adjudication
  2. 2 Whether delay in realising security caused prejudice sufficient to defeat adjudication
  3. 3 Proper valuation of the secured property at relevant times

Ratio Decidendi

Creditor established an outstanding debt and an available act of bankruptcy (failure to comply with the bankruptcy notice), and valuation evidence demonstrated that ASL's security was insufficient (shortfall of at least approximately $300,000); consequently there was no basis to resist adjudication and the debtor was adjudicated bankrupt.

Court Disposition

Order adjudicating John Andrew Niven bankrupt

Orders

  • Order adjudicating Mr John Andrew Niven bankrupt made 5 March 2009 at 11:55am
  • Judgment debtor to pay costs of and incidental to this application on a 2B basis and disbursements as fixed by the Registrar