MOULD & ANOR v HARVEY [2014] NZHC 2646

MOULD & ANOR v HARVEY [2014] NZHC 2646 [28 October 2014]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2014-419-236[2014] NZHC 2646IN THE MATTER of the Insolvency Act 2006IN THE MATTER of the bankruptcy of PHILLIP ROYHARVEYBETWEEN JEREMY ALICK MOULD, CARLYJEAN MOULD & OLIVIA JEANMOULDJudgment CreditorsAND PHILLIP ROY HARVEYJudgment DebtorHearing: 28 October 2014Appearances: Mr T Burtenshaw for Judgment CreditorsMr P R Harvey in personJudgment: 28 October 2014ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE[1] The judgment debtor in this case has filed a notice of intention to oppose theapplication for an adjudication order. Essentially the judgment debtor attacks thepropriety of the costs order which Justice Brown made and which is set out in theform of judgment that was sealed 9 December 2013. That judgment fixed the costsin certain estate proceedings at $31,889.87. Mr Harvey has asserted since the orderwas made that the plaintiff did not act with "clean hands" in the case in that on 17August 2012 he assaulted the other judgment debtor, Ms Raewyn Mitchell.[2] It was further stated in the notice of intention to oppose that an application had been made to the Court of Appeal to have the case reheard on the grounds thatJustice Brown "may have overlooked" the requirement for clean hands in theoccurrence of the assault when giving his judgment on 9 December 2013.[3] Mr Harvey told me candidly that the application which he had made to theCourt of Appeal had been dismissed or declined. It may be that in fact theapplication took the form of a letter that Mr Harvey wrote to the Court of Appeal.That is the contention of counsel for the judgment debtor in any event, the judgmentstands and the attempt to have it set aside proved unsuccessful.[4] Mr Harvey told me today that he opposed the making of an order foradjudication and that he invoked the Court's discretion. He made reference to s 37of the Insolvency Act 2006. However I think it is fair to say that while Mr Harveyhas invoked the broad grounds of the Court exercising its discretion to decline toadjudicate, the matter in the end comes down to the question of the justification forthe High Court making the order which has given rise to the debt which underlies theapplication for adjudication.[5] Normally the Courts do not determine opposed bankruptcy matters at liststage. Some however are capable of resolution at that point because the issues aresimple and straightforward and it would not be in the interests of the parties for thematter to be adjourned for a fixture. This case is of that kind.[6] The case turns upon the question of whether it is now open to Mr Harvey tocall into question the debt upon which the application for order adjudicating himbankrupt is based. In my view it is clearly not open to him to take that point. Thejudgment on the basis of which the judgment creditor proceeds has to be regarded bythis Court as binding and extant. It is not open to this Court when considering anapplication for an adjudication order to make its own enquiries into the question ofwhether the Judge who made the original order ought to have done so. If, of course,the judgment debtor is able to persuade an appellate Court to come to such a decisionthat is a separate matter altogether but that has not happened in this case andtherefore as I say the judgment must be given effect to. It follows from that thatthere are no grounds upon which the Court can decline to make the order foradjudication for reasons that the original order ought not to have been made. Thereare no other grounds of opposition available to the judgment debtor which he has setout in a properly framed notice of intention to oppose. There is no dispute that thedebt is owing. In my view the judgment creditor is entitled to the order which itseeks and I therefore make an order adjudicating the judgment debtor bankrupt. Theorder is timed at 10.50 a.m. The judgment creditor will have 2B costs anddisbursements as fixed by the Registrar.______________________J P DoogueAssociate Judge