White v Lynch [2015] NZHC 3202

White v Lynch [2015] NZHC 3202

The Court found the plaintiffs failed to demonstrate the strike-out order was fraudulently or improperly obtained under r 7.51 because the alleged fraud was not the strict kind required to impugn a final judgment, the impugned material was available earlier and finality/res judicata principles barred the claims;...

Source-derived case information.

Citation
[2015] NZHC 3202
Parties
First Plaintiff / Judgment Debtor: Amanda Adele White; Second Plaintiff / Judgment Debtor: Anne Leoline Emily Freeman; First Defendant / Judgment Creditor: Christopher Maurice Lynch; Second Defendant: Stuart Gordon Spence
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 December 2015
Procedural Posture
Interlocutory Civil Application to Rescind Strike Out Order and Insolvency Adjudication Applications / Hearing on Application to Rescind (r 7.51) and Exercise of Discretion Under S 37 Insolvency Act 2006 for Adjudication
Outcome
Application to rescind refused; Amanda Adele White and Anne Leoline Emily Freeman adjudicated bankrupt; costs awarded to defendants/judgment creditor
Legal Topics
Rule 7.51 High Court Rules, Res Judicata / Issue Estoppel, Fraudulent or Improperly Obtained Orders, Security for Costs, Bankruptcy Adjudication S 37 Insolvency Act 2006
Civil Procedure Insolvency Law Appeal and Costs Law Rule 7.51 High Court Rules Res Judicata / Issue Estoppel Fraudulent or Improperly Obtained Orders Security for Costs Bankruptcy Adjudication S 37 Insolvency Act 2006

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Parties

Amanda Adele White

First Plaintiff / Judgment Debtor

Anne Leoline Emily Freeman

Second Plaintiff / Judgment Debtor

Christopher Maurice Lynch

First Defendant / Judgment Creditor

Stuart Gordon Spence

Second Defendant

Procedural Posture

Interlocutory Civil Application to Rescind Strike Out Order and Insolvency Adjudication Applications / Hearing on Application to Rescind (r 7.51) and Exercise of Discretion Under S 37 Insolvency Act 2006 for Adjudication

Legal Issues

  1. 1 Whether the strike-out order could be rescinded under r 7.51 as fraudulently or improperly obtained
  2. 2 Whether pleaded causes of action were barred by res judicata or issue estoppel
  3. 3 Whether the court should exercise its discretion under s 37 Insolvency Act 2006 to refuse adjudication of the judgment debtors as bankrupts

Ratio Decidendi

The Court found the plaintiffs failed to demonstrate the strike-out order was fraudulently or improperly obtained under r 7.51 because the alleged fraud was not the strict kind required to impugn a final judgment, the impugned material was available earlier and finality/res judicata principles barred the claims; accordingly rescission was refused and, having found no sufficient reason to decline exercise of discretion under s 37, both Amanda White and Anne Freeman were adjudicated bankrupt and costs awarded to the defendants/judgment creditor.

Court Disposition

Application to rescind refused; Amanda Adele White and Anne Leoline Emily Freeman adjudicated bankrupt; costs awarded to defendants/judgment creditor

Orders

  • The application for an order that the judgment of 14 May 2015 be rescinded is refused
  • Amanda Adele White is adjudicated bankrupt effective 11 am on 15 December 2015