FISTONICH BUILDING REMOVALS LIMITED v NICHOLLS [2014] NZHC 505

FISTONICH BUILDING REMOVALS LIMITED v NICHOLLS [2014] NZHC 505

The statutory prerequisites under s13 were satisfied and, on balance, the public interest in adjudicating an insolvent debtor who cannot realistically pay his debts outweighed the private hardship; accordingly the court exercised its discretion to adjudicate Nicholls bankrupt despite limited practical monetary benefit to the creditor and made no order for costs.

Citation
[2014] NZHC 505
Parties
Plaintiff / Judgment Creditor: Fistonich Building Removals Limited; Defendant / Judgment Debtor: Rodney John Nicholls
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 March 2014
Procedural Posture
Bankruptcy Adjudication Application / Heard; Adjudication Order Made
Outcome
Order adjudicating Rodney John Nicholls bankrupt; no order for costs
Legal Topics
Adjudication, Bankruptcy Notice, Summary Instalment Order, Costs, Judicial Discretion
Insolvency Bankruptcy Civil Procedure Adjudication Bankruptcy Notice Summary Instalment Order Costs Judicial Discretion

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Parties

Fistonich Building Removals Limited

Plaintiff / Judgment Creditor

Rodney John Nicholls

Defendant / Judgment Debtor

Procedural Posture

Bankruptcy Adjudication Application / Heard; Adjudication Order Made

Legal Issues

  1. 1 Whether s 13 Insolvency Act 2006 jurisdictional requirements are satisfied
  2. 2 Whether the court should exercise its discretion to adjudicate (just and equitable)
  3. 3 Whether the debtor is insolvent and unable to pay judgment and costs

Ratio Decidendi

The statutory prerequisites under s13 were satisfied and, on balance, the public interest in adjudicating an insolvent debtor who cannot realistically pay his debts outweighed the private hardship; accordingly the court exercised its discretion to adjudicate Nicholls bankrupt despite limited practical monetary benefit to the creditor and made no order for costs.

Court Disposition

Order adjudicating Rodney John Nicholls bankrupt; no order for costs

Orders

  • Adjudication order: Rodney John Nicholls adjudicated bankrupt (order timed 11:52 am, 19 March 2014)
  • No order for costs