KTTK APATU & ORS v WE MAUGER HC NAP CIV-2011-441-832

KTTK APATU & ORS v WE MAUGER HC NAP CIV-2011-441-832

The Court exercised its discretion under s37, finding by a slim margin that adjudication should be refused because the debtor, given her assets exceeding liabilities and the realistic prospect of realising assets within a reasonable time, together with her age, health (cognitive impairment) and the familial context...

Source-derived case information.

Citation
openlaw-aea624b3_c67f_44e3_9352_b45eb4afaa3e.pdf
Parties
First Judgment Creditor: Kenneth Tama Te Kapua Apatu; Second Judgment Creditor: Nathan Wirihana Apatu; Second Judgment Creditor: Renata Robin Apatu; Second Judgment Creditor: Katherine Louise Bates (as executor of the estate of Wirihana Terrence Apatu); Judgment Debtor: Winipere Eva Mauger
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 December 2012
Procedural Posture
Bankruptcy Adjudication Application Under the Insolvency Act 2006 / Hearing on Adjudication Application (application Dismissed)
Outcome
Adjudication application dismissed; order for adjudication refused
Legal Topics
Adjudication Under S37 Insolvency Act 2006, S13 Act of Bankruptcy, Mental Capacity and Vulnerability in Litigation, Enforcement of Costs Orders, Official Assignee Investigation
Insolvency Bankruptcy Civil Procedure Costs Adjudication Under S37 Insolvency Act 2006 S13 Act of Bankruptcy Mental Capacity and Vulnerability in Litigation Enforcement of Costs Orders +1 more

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Parties

Kenneth Tama Te Kapua Apatu

First Judgment Creditor

Nathan Wirihana Apatu

Second Judgment Creditor

Renata Robin Apatu

Second Judgment Creditor

Katherine Louise Bates (as executor of the estate of Wirihana Terrence Apatu)

Second Judgment Creditor

Winipere Eva Mauger

Judgment Debtor

Procedural Posture

Bankruptcy Adjudication Application Under the Insolvency Act 2006 / Hearing on Adjudication Application (application Dismissed)

Legal Issues

  1. 1 Whether the statutory requirements for adjudication under s13 were satisfied
  2. 2 Whether the Court should exercise its discretion under s37(c) to refuse adjudication as just and equitable
  3. 3 Whether the Court should exercise its discretion under s37(b) because the debtor is able to pay her debts

Ratio Decidendi

The Court exercised its discretion under s37, finding by a slim margin that adjudication should be refused because the debtor, given her assets exceeding liabilities and the realistic prospect of realising assets within a reasonable time, together with her age, health (cognitive impairment) and the familial context and role played by her brother, made refusal of adjudication the just and equitable outcome.

Court Disposition

Adjudication application dismissed; order for adjudication refused

Orders

  • Application to adjudicate Winipere Eva Mauger bankrupt dismissed
  • No order as to costs; costs lie where they fall