KIM v MAO [2023] NZHC 3671

KIM v MAO [2023] NZHC 3671

The creditors satisfied the jurisdictional requirements under ss13 and 36; the debtor failed to discharge the onus to show it is just and equitable to refuse adjudication; exercising the court's discretion under s38 the application is halted on terms that the debtor pay $96,432.74 by 5pm 20 December 2023, failing which the halt is lifted and an adjudication order will be made.

Citation
[2023] NZHC 3671
Parties
Judgment Creditor: Hyun Bin Kim; Judgment Creditor: Duk Young Lee; Judgment Debtor: Jiawen Mao
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 December 2023
Procedural Posture
Application for Adjudication Under Insolvency Act 2006 / Hearing and Judgment; Application Halted on Condition
Outcome
Creditor's application for adjudication halted on condition of payment by debtor; halt to be lifted and adjudication to proceed if condition not met
Legal Topics
Adjudication Under S36, Bankruptcy Notice, Discretion to Refuse Adjudication (s37), Halting Application (s38), Indemnity Costs, Collateral Attack on Judgments
Insolvency Bankruptcy Civil Procedure Costs Adjudication Under S36 Bankruptcy Notice Discretion to Refuse Adjudication (s37) Halting Application (s38) +2 more

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Parties

Hyun Bin Kim

Judgment Creditor

Duk Young Lee

Judgment Creditor

Jiawen Mao

Judgment Debtor

Procedural Posture

Application for Adjudication Under Insolvency Act 2006 / Hearing and Judgment; Application Halted on Condition

Legal Issues

  1. 1 Whether jurisdictional requirements under ss13 and 36 are met
  2. 2 Whether it is just and equitable to refuse adjudication under s37
  3. 3 Whether the court should halt the application under s38 and on what terms

Ratio Decidendi

The creditors satisfied the jurisdictional requirements under ss13 and 36; the debtor failed to discharge the onus to show it is just and equitable to refuse adjudication; exercising the court's discretion under s38 the application is halted on terms that the debtor pay $96,432.74 by 5pm 20 December 2023, failing which the halt is lifted and an adjudication order will be made.

Court Disposition

Creditor's application for adjudication halted on condition of payment by debtor; halt to be lifted and adjudication to proceed if condition not met

Orders

  • The creditors' application for adjudication is halted on the condition that the judgment debtor pay the judgment creditors the sum of $96,432.74 in full by 5 pm on 20 December 2023.
  • If the judgment debtor fails to pay the sum by that time the halt on the proceeding is lifted and the court will immediately make an order for adjudication (debtor bankrupt).