WISHART & ORS V FETHERSTON HC AK CIV 2012-404-001596

WISHART & ORS V FETHERSTON HC AK CIV 2012-404-001596

Because the debtor disclosed no valid basis to oppose adjudication, the core contentions had been disposed of in the prior determination by Associate Judge Sargisson, and the debtor had committed an act of bankruptcy by failing to comply with the bankruptcy notice, the Court adjudicated the debtor bankrupt and awarded costs.

Citation
openlaw-fbf07674_2e6d_414a_a79e_0af07a3f1a24.pdf
Parties
Judgment Creditor: Alister John Wishart; Judgment Creditor: Jenniemargaret Wishart; Judgment Creditor: Harbour Trustees Limited as trustees of the Wishart Family Trust; Judgment Debtor: Denis John Fetherston
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 January 2013
Procedural Posture
Adjudication in Bankruptcy / Adjudication Hearing (first Call)
Outcome
Judgment debtor adjudicated bankrupt; costs and disbursements awarded to judgment creditors
Legal Topics
Adjudication, Bankruptcy Notice, Set Off, Costs, Substituted Service
Insolvency Bankruptcy Civil Procedure Adjudication Bankruptcy Notice Set Off Costs Substituted Service

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Parties

Alister John Wishart

Judgment Creditor

Jenniemargaret Wishart

Judgment Creditor

Harbour Trustees Limited as trustees of the Wishart Family Trust

Judgment Creditor

Denis John Fetherston

Judgment Debtor

Procedural Posture

Adjudication in Bankruptcy / Adjudication Hearing (first Call)

Legal Issues

  1. 1 Whether the debtor’s notice of intention to oppose discloses a valid basis to resist adjudication
  2. 2 Whether alleged set-offs or counterclaims defeat the judgment creditors' application for adjudication
  3. 3 Whether an application to set aside the bankruptcy notice that is said to be pending prevents adjudication

Ratio Decidendi

Because the debtor disclosed no valid basis to oppose adjudication, the core contentions had been disposed of in the prior determination by Associate Judge Sargisson, and the debtor had committed an act of bankruptcy by failing to comply with the bankruptcy notice, the Court adjudicated the debtor bankrupt and awarded costs.

Court Disposition

Judgment debtor adjudicated bankrupt; costs and disbursements awarded to judgment creditors

Orders

  • Order adjudicating Denis John Fetherston bankrupt
  • Judgment creditors awarded costs of $4,356 and disbursements of $1,121.70