FONTEIN V BANK OF NEW ZEALAND HC AK CIV 2009-404-007769

FONTEIN V BANK OF NEW ZEALAND HC AK CIV 2009-404-007769

Jurisdictional requirements under ss13 and 36 were satisfied; balancing discretionary factors under s37, the debtor failed to demonstrate that adjudication should be refused: the very large deficiency arising from debtor's control of risky property development, the public interest in exposing and supervising insolvent operators, the insufficiency of proposals and lack of oppressive conduct by the creditor compelled the court to adjudicate the debtor bankrupt.

Citation
openlaw-e5f69c2a_13a6_4582_b8f9_e6edec8ba368.pdf
Parties
Judgment Debtor: Patrick Marinus Fontein; Judgment Creditor: Bank of New Zealand
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 November 2010
Procedural Posture
Bankruptcy Adjudication Under Insolvency Act 2006 / Application for Adjudication Order (hearing Concluded)
Outcome
Adjudicated bankrupt
Legal Topics
Adjudication Order, Act of Bankruptcy, Discretion to Refuse Adjudication (s37), Bankruptcy Notice, Proposals Under Insolvency Act, Oppressive Use of Bankruptcy Process, Personal Guarantees, Official Assignee Investigation
Insolvency Bankruptcy Commercial Law Property/real Estate Receivership Adjudication Order Act of Bankruptcy Discretion to Refuse Adjudication (s37) +5 more

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Parties

Patrick Marinus Fontein

Judgment Debtor

Bank of New Zealand

Judgment Creditor

Procedural Posture

Bankruptcy Adjudication Under Insolvency Act 2006 / Application for Adjudication Order (hearing Concluded)

Legal Issues

  1. 1 Whether jurisdictional requirements for adjudication under ss13 and 36 of the Insolvency Act 2006 are met
  2. 2 Whether the court should exercise its discretion under s37 to refuse adjudication as just and equitable or because debtor can pay
  3. 3 Whether the creditor's conduct amounted to oppressive use of the bankruptcy process

Ratio Decidendi

Jurisdictional requirements under ss13 and 36 were satisfied; balancing discretionary factors under s37, the debtor failed to demonstrate that adjudication should be refused: the very large deficiency arising from debtor's control of risky property development, the public interest in exposing and supervising insolvent operators, the insufficiency of proposals and lack of oppressive conduct by the creditor compelled the court to adjudicate the debtor bankrupt.

Court Disposition

Adjudicated bankrupt

Orders

  • Adjudicate Patrick Marinus Fontein a bankrupt on 22 November 2010 at 2:30pm
  • Costs preliminarily awarded to judgment creditor on Category 2 Band B; parties to file memoranda on costs at seven-day intervals if they cannot agree; file to be referred to judge to fix costs