GILLIBRAND v HOLGATE [2019] NZHC 983

GILLIBRAND v HOLGATE [2019] NZHC 983 [14 June 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2019-488-20[2019] NZHC 983BETWEEN CHRISTIAN JOHN GILLIBRAND andMARY CAECILIA GILLIBRAND astrustees of the CHRIS AND MARYGILLIBRAND FAMILY TRUSTEntitled PartyAND ANDREW PETER HOLGATELiable PartyOn the papersAppearances: C Patterson and MT Green for Entitled PartyAP Holgate, self-representedJudgment: 10 June 2019Recalled: 10 June 2019Reissued: 14 June 2019JUDGMENT OF TOOGOOD JThis judgment was re-issued by me on 14 June 2019 at 3.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] On 6 June 2017, Woodhouse J entered judgment against Mr Andrew Holgate(the liable party) for $85,049.26 in favour of Christian and Mary Gillibrand acting astrustees for the Chris and Mary Gillibrand Family Trust (the entitled party).1 On12 June 2018, a further judgment of $80,554.41 was entered against Mr Holgate infavour of the entitled party.2 The combined judgment sum amounts to $165,603.67.It appears to be undisputed that Mr Holgate has failed to pay that sum and that,accordingly, an attachment order may be made in favour of the entitled party.[2] I have considered Mr Holgate's memorandum dated 3 May 2019 in which heseeks to oppose the entitled party's application for an attachment order. He says thathis financial means have changed since he was examined, and that any attachmentorder should reflect this. Mr Holgate asks the Court to defer considering theattachment application for 10 working days.Legal principles[3] Rule 17.33 of the High Court Rules 2016 reads as follows:17.33 When attachment order may be issued(1) If the liable party has been examined under rule 17.15, the court, onthe written or oral application of the entitled party, may make an attachmentorder at any time after judgment is sealed.(2) An attachment order−(a) may be made against a person who the court is satisfied is anemployer of the liable party:(b) may be made for a fixed period or until the judgment debt hasbeen fully paid:(c) must specify the person to whom the amounts to be deductedmust be paid:(d) must specify the protected earnings amount.(3) Form E 3 must be used.1 Gillibrand v Swanepoel [2017] NZHC 1209.2 Gillibrand v Swanepoel [2018] NZHC 1376.[4] Rule 17.31 defines the term "protected earnings amount" as "an amountspecified in an attachment order below which the net earnings or benefit paid to theliable party must not be reduced".[5] Under r 17.39 an entitled party or a liable party may apply to a Judge at anytime to vary, suspend or discharge an attachment order. The Judge may grant such anapplication if he or she is satisfied there is good reason to do so.3The application[6] The entitled party seeks an attachment order for the deduction of $100 perweek from Mr Holgate's salary until the judgment debt is fully paid, with the protectedearnings amount set at $660 per week.Factual background[7] When Mr Holgate was examined in this Court on 16 October 2018, as isrequired by r 17.39, he gave the following evidence:(a) He works as a sole practitioner and a self-employed barrister inWhangārei.(b) He operates his business current account as a business account and alsolives off it for personal use.(c) His income for the 52 weeks between 1 July 2017 and 30 June 2018was $60,348.26.(d) During this period his expenses totalled $54,883.70 but $3,630 of thiswas put towards charitable donations.(e) Had he not made these donations, his disposable income would havebeen $174.89 per week.3 High Court Rules 2016, r 17.39(2).(f) He charges his clients a base rate of $300 per hour.[8] If an attachment order is made for $100 per week, Mr Holgate will be left with$74.89 per week for miscellaneous expenditure after his expenses are paid for.Discussion[9] The High Court Rules 2016 make no provision for liable parties to be heard inopposition to attachment order applications. The time for a liable party to be heard isduring the examination under r 17.15. If Mr Holgate's financial situation has changed,he is able to apply to have the order varied under r 17.39. That may seem to be animpractical outcome but, in the absence of agreement between the parties, I am notprepared to impose on the entitled party the cost of a further hearing not provided forin the Rules.[10] I am satisfied that the attachment order should be granted, subject to onequalification. That is to increase the protected earnings rate contained in the orderfrom $660 per week to 60 percent of the liable party's net earnings. That was theapproach recently taken by Andrew AJ in Re Greer, ex parte Klavenes, where theAssociate Judge adopted the approach provided for in s 157(6) of the District CourtAct 2016.4 I endorse it. Based on Mr Holgate's net earnings between 1 July 2017 and30 June 2018, I calculate the protected earnings rate to be $696.32 per week.[11] By Minute dated 2 May 2019 I raised an issue of the person to whom paymentsunder the attachment order should be made. It has been clarified that they should bemade to a bank account in the names of 'Chris and Mary Gillibrand'.Orders[12] I make the following orders pursuant to r 17.33 of the High Court Rules 2016accordingly:TO: ANDREW PETER HOLGATE of Whangārei, barrister:4 Re Greer, ex parte Klavenes [2019] NZHC 256 at [7] and [8].(a) This Court is satisfied that you are a self-employed barrister and a solepractitioner. You are both the liable party and the employer of the liableparty.(b) On 6 June 2017, in the High Court at Whangarei, judgment was givenagainst you as the liable party for $68,049.26.(c) On 12 June 2018, in the High Court at Whangarei, judgment was givenagainst you as the liable party for $80,554.41.(d) As the liable party has not paid this amount and, after examining theliable party's means, the Court makes this order.(e) The Court orders that while this order is in force, whenever payment ismade to the liable party, you must deduct from it the amount of $100.00for each week.(f) However, if in any week the deduction would reduce the net earningspaid to the liable party below the protected earnings rate of $696.32 perweek (before tax), you must adjust the amount of the deduction so thatthe liable party receives the protected earnings rate.(g) The first deduction is to be made on the payday following the date onwhich you receive this order. A deduction is to be made on everysubsequent payday until the total amount payable shown inparagraph (i) below has been paid.(h)(i) You are not required to make deductions for more than the total amountREDACTEDpayable shown below:Particulars AmountJudgment debt sought by this order $165,603.67Filing fee for Order for Examination $400.00Solicitor's costs for preparing application for Orderfor Examination (52, 2A basis 0.5)$740.00Solicitor's costs for Order for Examination Hearing(62, 2A basis 0.5)$640.00Filing fee for Attachment Order Application $500.00Filing fee for Issuing Attachment Order $200.00Solicitors costs for preparation of AttachmentOrder Application (52, 2A basis 0.5)$740.00Sealing fee for Attachment Order $50.00Total: $168,873.67...................................................Toogood J