DIXON V BROOKFIELDS LAWYERS HC HAM CIV 2008-419-001283

DIXON V BROOKFIELDS LAWYERS HC HAM CIV 2008-419-001283

Amendment of the substituted creditor's application under s418 was permitted because no prejudice to the debtor was shown; the substituted creditor must comply with s13(b) if relying on a different act of bankruptcy; jurisdictional requirements were met and, in the exercise of the Court's discretion under s37, the matter was adjourned for one month to allow the debtor to authorise payment of funds to satisfy the debts, with the hearing to resume if payments are not made.

Citation
openlaw-4fb9df28_4d4c_4a00_8163_4bd61edf2f9a.pdf
Parties
Judgment Debtor: Kay Elizabeth Dawn Dixon; Judgment Creditor (substituted): Brookfields Lawyers; Applying Creditor (original): Indepth Forensic Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 September 2009
Procedural Posture
Bankruptcy Adjudication / Interim Judgment and Adjourned to 19 October 2009
Outcome
Interim judgment: application amended and adjourned to permit authorised payments to be made; hearing to resume if payments not completed
Legal Topics
Adjudication, Act of Bankruptcy, Substitution of Creditor, Amendment of Proceedings (s418), Court Discretion to Refuse Adjudication, Adjournment to Permit Payment
Insolvency Bankruptcy Civil Procedure Family Law Adjudication Act of Bankruptcy Substitution of Creditor Amendment of Proceedings (s418) +2 more

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Parties

Kay Elizabeth Dawn Dixon

Judgment Debtor

Brookfields Lawyers

Judgment Creditor (substituted)

Indepth Forensic Limited

Applying Creditor (original)

Procedural Posture

Bankruptcy Adjudication / Interim Judgment and Adjourned to 19 October 2009

Legal Issues

  1. 1 Whether the jurisdictional requirements of ss13 and 36 of the Insolvency Act 2006 are met
  2. 2 Whether a substituted creditor may rely on an act of bankruptcy different to that pleaded by the original creditor and the time limitation in s13(b)
  3. 3 Whether amendment under s418 may be permitted despite the three month filing requirement

Ratio Decidendi

Amendment of the substituted creditor's application under s418 was permitted because no prejudice to the debtor was shown; the substituted creditor must comply with s13(b) if relying on a different act of bankruptcy; jurisdictional requirements were met and, in the exercise of the Court's discretion under s37, the matter was adjourned for one month to allow the debtor to authorise payment of funds to satisfy the debts, with the hearing to resume if payments are not made.

Court Disposition

Interim judgment: application amended and adjourned to permit authorised payments to be made; hearing to resume if payments not completed

Orders

  • The substituted creditor's application is amended by deleting paragraph 2(c) and replacing it with: The debtor has committed an available act of bankruptcy as follows: (i) the debtor has failed, before 19 November 2008, to comply with the requirements of a bankruptcy notice duly served on her on the 5th day of...
  • The application is adjourned to the bankruptcy list at 10.00am on 19 October 2009 to check that the payments authorised by Mrs Dixon have been made, with a view to the proceeding being dismissed.