ASB BANK LIMITED v ROBINSON & ANOR [2014] NZHC 608

ASB BANK LIMITED v ROBINSON & ANOR [2014] NZHC 608

The Court adjudicated the Robinsons bankrupt because the statutory prerequisites were satisfied (a valid judgment existed, bankruptcy notices based on that judgment were served and went unsatisfied), the defendants could not collaterally attack the judgment in bankruptcy proceedings, the alleged defects and arguments raised did not undermine the judgment or show a sufficient basis to refuse adjudication under s37, and discretionary considerations (including public interest and commercial morality) favoured adjudication despite limited recoverable assets.

Citation
[2014] NZHC 608
Parties
Judgment Creditor: ASB Bank Limited; Judgment Debtor: Christopher John Robinson; Judgment Debtor: Alison Christina Robinson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 March 2014
Procedural Posture
Bankruptcy/adjudication Under Insolvency Act 2006 / Hearing and Judgment (adjudication)
Outcome
Orders adjudicating Christopher John Robinson and Alison Christina Robinson bankrupt granted
Legal Topics
Bankruptcy Adjudication, Statutory Demand, Mortgagee Sale and S176 Property Law Act 2007, Guarantee and Indemnity, Res Judicata/estoppel, Judicial Discretion Under S37 Insolvency Act 2006
Insolvency Law Property Law Contract Law Civil Procedure Bankruptcy Adjudication Statutory Demand Mortgagee Sale and S176 Property Law Act 2007 Guarantee and Indemnity +2 more

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Parties

ASB Bank Limited

Judgment Creditor

Christopher John Robinson

Judgment Debtor

Alison Christina Robinson

Judgment Debtor

Procedural Posture

Bankruptcy/adjudication Under Insolvency Act 2006 / Hearing and Judgment (adjudication)

Legal Issues

  1. 1 Whether statutory prerequisites for adjudication were satisfied (judgment, service and non‑compliance with bankruptcy notice)
  2. 2 Whether the defendants can challenge the underlying judgment in bankruptcy proceedings
  3. 3 Validity of the 2007 replacement mortgage and continued effect of 2005 guarantee and indemnity

Ratio Decidendi

The Court adjudicated the Robinsons bankrupt because the statutory prerequisites were satisfied (a valid judgment existed, bankruptcy notices based on that judgment were served and went unsatisfied), the defendants could not collaterally attack the judgment in bankruptcy proceedings, the alleged defects and arguments raised did not undermine the judgment or show a sufficient basis to refuse adjudication under s37, and discretionary considerations (including public interest and commercial morality) favoured adjudication despite limited recoverable assets.

Court Disposition

Orders adjudicating Christopher John Robinson and Alison Christina Robinson bankrupt granted

Orders

  • Adjudicate Christopher John Robinson bankrupt
  • Adjudicate Alison Christina Robinson bankrupt