BARTERCARD EXCHANGE LIMITED v DE VRIES [2018] NZHC 854

BARTERCARD EXCHANGE LIMITED v DE VRIES [2018] NZHC 854

The debt relied on was a valid and enforceable judgment debt exceeding $1,000, the debtor committed an act of bankruptcy by failing to comply with the second bankruptcy notice within the statutory period, and there were no sufficient grounds under s 37 to refuse adjudication; accordingly the creditor was prima facie entitled to adjudication and the Court adjudicated the debtor bankrupt.

Citation
[2018] NZHC 854
Parties
Judgment Creditor: Bartercard Exchange Limited; Judgment Debtor: Anthony Harry de Vries
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 April 2018
Procedural Posture
Bankruptcy Adjudication Under Insolvency Act 2006 / Application Hearing and Judgment (high Court)
Outcome
Application allowed in part: adjudication order granted for the applicant; strike-out and procedural applications dismissed
Legal Topics
Adjudication Order Under S13, Discretion to Refuse Under S37, Bankruptcy Notice, Set Aside Judgment, Strike Out Applications, Costs, Discovery/counterclaim
Insolvency Bankruptcy Civil Procedure Debt Enforcement Appeals Adjudication Order Under S13 Discretion to Refuse Under S37 Bankruptcy Notice +4 more

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Parties

Bartercard Exchange Limited

Judgment Creditor

Anthony Harry de Vries

Judgment Debtor

Procedural Posture

Bankruptcy Adjudication Under Insolvency Act 2006 / Application Hearing and Judgment (high Court)

Legal Issues

  1. 1 Whether the s 13 requirements for adjudication (debt >= $1,000; act of bankruptcy within 3 months; debt certain; debt payable) were met
  2. 2 Whether the Court should exercise its discretion under s 37 to refuse adjudication
  3. 3 Whether earlier default judgments could be set aside and thus defeat adjudication

Ratio Decidendi

The debt relied on was a valid and enforceable judgment debt exceeding $1,000, the debtor committed an act of bankruptcy by failing to comply with the second bankruptcy notice within the statutory period, and there were no sufficient grounds under s 37 to refuse adjudication; accordingly the creditor was prima facie entitled to adjudication and the Court adjudicated the debtor bankrupt.

Court Disposition

Application allowed in part: adjudication order granted for the applicant; strike-out and procedural applications dismissed

Orders

  • Dismiss strike-out application filed 1 November 2017
  • Dismiss discovery application dated 10 November 2017