Cox v Coughlan [2015] NZHC 1014

Cox v Coughlan [2015] NZHC 1014

The judge inferred from the solicitor's correspondence and advice of an imminent settlement date together with evidence of acts of bankruptcy and non-compliance that the properties were to be disposed of and that the judgment debtors intended to defeat the creditors; those findings satisfied r 17.41 and justified granting leave to issue charging orders before judgment.

Citation
[2015] NZHC 1014
Parties
First Judgment Creditor; Second Judgment Creditor: Gary David Cox; First Judgment Creditor: Steve Cowie; First Judgment Creditor: Gary David Sutcliffe; Judgment Debtor: Michael John Coughlan; Judgment Debtor: Annemarie Elizabeth Wilson; Third Party: Conveyancing Shop Lawyes Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 May 2015
Procedural Posture
Application for Leave to Issue Charging Orders Before Judgment / Without Notice Application on the Papers
Outcome
Leave granted to issue charging orders before judgment
Legal Topics
Charging Order Before Judgment, Specific Performance, Acts of Bankruptcy, Inference of Intent to Defeat Creditors
Civil Procedure Property Law Insolvency and Bankruptcy Remedies Charging Order Before Judgment Specific Performance Acts of Bankruptcy Inference of Intent to Defeat Creditors

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Parties

Gary David Cox

First Judgment Creditor; Second Judgment Creditor

Steve Cowie

First Judgment Creditor

Gary David Sutcliffe

First Judgment Creditor

Michael John Coughlan

Judgment Debtor

Annemarie Elizabeth Wilson

Judgment Debtor

Conveyancing Shop Lawyes Limited

Third Party

Procedural Posture

Application for Leave to Issue Charging Orders Before Judgment / Without Notice Application on the Papers

Legal Issues

  1. 1 Whether there was disposal or imminent disposition of the judgment debtors' property
  2. 2 Whether the judgment debtors had the requisite intention to defeat the judgment creditors under r 17.41
  3. 3 Whether objective facts support an inference of intent rather than speculation

Ratio Decidendi

The judge inferred from the solicitor's correspondence and advice of an imminent settlement date together with evidence of acts of bankruptcy and non-compliance that the properties were to be disposed of and that the judgment debtors intended to defeat the creditors; those findings satisfied r 17.41 and justified granting leave to issue charging orders before judgment.

Court Disposition

Leave granted to issue charging orders before judgment

Orders

  • Charging orders granted in terms of the draft order submitted by counsel
  • Costs reserved