ALLIED NATIONWIDE FINANCE LIMITED V CM TEMPLE (ALSO KNOWN AS CM RADBURND) HC NAP CIV-2011-441-172

ALLIED NATIONWIDE FINANCE LIMITED V CM TEMPLE (ALSO KNOWN AS CM RADBURND) HC NAP CIV-2011-441-172

The Court exercised its discretion under s37 Insolvency Act 2006 and refused adjudication because the debtor had been misled and deceived by her former husband and by assurances from a solicitor, had minimal assets and irregular income, and bankruptcy would serve no practical useful purpose nor was it required in the public interest; accordingly the creditor's application was dismissed.

Citation
openlaw-86f95220_8525_475a_9c21_f66fcb8aab72.pdf
Parties
Judgment Creditor: Allied Nationwide Finance Limited; Judgment Debtor: Cathryn Mary Temple (also known as Cathryn Mary Radburnd)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 September 2011
Procedural Posture
Creditor Application for Adjudication of Debtor Bankrupt Under Insolvency Act 2006 / Hearing and Judgment on Creditor's Application to Adjudicate Debtor Bankrupt
Outcome
Application for adjudication dismissed; adjudication refused
Legal Topics
Adjudication, Bankruptcy Notice, Court Discretion to Refuse Adjudication, Section 37 Insolvency Act 2006, Just and Equitable Grounds
Insolvency Bankruptcy Civil Procedure Contract Property Law Adjudication Bankruptcy Notice Court Discretion to Refuse Adjudication +2 more

Case Brief

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Parties

Allied Nationwide Finance Limited

Judgment Creditor

Cathryn Mary Temple (also known as Cathryn Mary Radburnd)

Judgment Debtor

Procedural Posture

Creditor Application for Adjudication of Debtor Bankrupt Under Insolvency Act 2006 / Hearing and Judgment on Creditor's Application to Adjudicate Debtor Bankrupt

Legal Issues

  1. 1 Whether the creditor has established jurisdictional facts for adjudication under s13 Insolvency Act 2006
  2. 2 Whether the Court should exercise its discretion under s37 to refuse adjudication on just and equitable or other grounds
  3. 3 Whether public interest or practical utility justifies adjudication given debtor's circumstances

Ratio Decidendi

The Court exercised its discretion under s37 Insolvency Act 2006 and refused adjudication because the debtor had been misled and deceived by her former husband and by assurances from a solicitor, had minimal assets and irregular income, and bankruptcy would serve no practical useful purpose nor was it required in the public interest; accordingly the creditor's application was dismissed.

Court Disposition

Application for adjudication dismissed; adjudication refused

Orders

  • Application for adjudication dismissed
  • No order as to costs