REID V KHAN HC AK CIV-2009-404-8543

REID V KHAN HC AK CIV-2009-404-8543

The creditor proved the debt arising from costs orders; the debtor produced no evidence he is able to pay; there is no basis to exercise the s37 discretion to refuse adjudication; the bankruptcy notice was valid despite absence of prior invoice or demand; the asserted counterclaim was previously struck out and does...

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Citation
openlaw-48f0cde2_0769_48e3_b9c4_c63ea7b8a29a.pdf
Parties
Judgment Creditor: Keith William Reid; Judgment Debtor: Sher Afzal Khan
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 September 2010
Procedural Posture
Bankruptcy (insolvency Act 2006) / Adjudication Hearing on Application for Adjudication of Bankruptcy
Outcome
Order adjudicating Sher Afzal Khan bankrupt made effective 7 September 2010 at 4:30 pm
Legal Topics
Adjudication, Bankruptcy Notice, Set Aside Application, Section 37 Discretion, Costs Orders, Strike Out, Appeal/leave to Appeal
Insolvency Bankruptcy Civil Procedure Costs Professional Negligence Adjudication Bankruptcy Notice Set Aside Application +4 more

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Parties

Keith William Reid

Judgment Creditor

Sher Afzal Khan

Judgment Debtor

Procedural Posture

Bankruptcy (insolvency Act 2006) / Adjudication Hearing on Application for Adjudication of Bankruptcy

Legal Issues

  1. 1 Whether the creditor has established the debt and requirements for adjudication under the Insolvency Act 2006
  2. 2 Whether the court should exercise its discretion under s37 to refuse adjudication because the debtor is able to pay or for other just reasons
  3. 3 Whether the bankruptcy notice was defective for lack of prior invoice/demand

Ratio Decidendi

The creditor proved the debt arising from costs orders; the debtor produced no evidence he is able to pay; there is no basis to exercise the s37 discretion to refuse adjudication; the bankruptcy notice was valid despite absence of prior invoice or demand; the asserted counterclaim was previously struck out and does not prevent adjudication; therefore the court adjudicated the debtor bankrupt.

Court Disposition

Order adjudicating Sher Afzal Khan bankrupt made effective 7 September 2010 at 4:30 pm

Orders

  • Adjudication of Sher Afzal Khan as bankrupt effective 7 September 2010 at 4:30 pm
  • Judgment creditor awarded costs on a 2B basis