ROBERTSON BIXLEY LTD v JOLLY [2022] NZHC 286

ROBERTSON BIXLEY LTD v JOLLY [2022] NZHC 286 [27 February 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-001317[2022] NZHC 286BETWEEN ROBERTSON BIXLEY LIMITEDJudgment CreditorAND LISA JOLLYJudgment DebtorHearing: 1 February 2023Appearances: M W Swan for the Judgment CreditorJudgment Debtor in PersonJudgment: 27 February 2023JUDGMENT OF ASSOCIATE JUDGE GARDINERThis judgment was delivered by me on 27 February 2023 at 12.00 p.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors:Hucker & Associates, AucklandIntroduction[1] Lisa Jolly, the judgment debtor, applies to set aside a bankruptcy notice servedon her by Robertson Bixley Limited, the judgment creditor, on 13 August 2022.Alternatively, she asks that the bankruptcy proceedings are stayed.[2] The main issue is whether the bankruptcy notice should be set aside becausethe Deputy Registrar of the District Court in Wellington ordered that the judgmentdebt be paid by instalments pursuant to s 153 of the District Court Act 2016.Background[3] His Honour Judge J Bergseng issued a judgment in the District Court dated26 April 2022 against Mrs Jolly in favour of Robertson Bixley.1 The amount of costsfollowing this substantive judgment was fixed by Judge Bergseng on 17 May 2022.2An order in respect of this judgment was sealed by the District Court on31 May 2022.3[4] No steps have been taken by Mrs Jolly to apply to recall or appeal the DistrictCourt decision nor stay its execution or enforcement.[5] A bankruptcy notice was issued against Mrs Jolly on11 August 2022.4 The bankruptcy notice was personally served on Mrs Jolly on13 August 2022.5[6] On 26 August 2022, Mrs Jolly applied for an order setting aside the bankruptcynotice.6 The grounds of the application are:(a) The bankruptcy notice is defective as it does not attach a certified sealedcopy of the certificate of judgment from the District Court.1 Robertson Bixley Ltd v Jolly [2022] NZDC 6450.2 Robertson v Bixley Ltd v Jolly [2022] NZDC 8436.3 Robertson Bixley Ltd v Jolly DC Papakura CIV-2020-055-000594, 31 May 2022 (Order of theCourt).4 Bankruptcy Notice, 11 August 2022.5 Affidavit of service of Aaron Desmond Sewell sworn 18 August 2022.6 Application to set aside bankruptcy notice, 26 August 2022.(b) Mrs Jolly has a counterclaim against Robertson Bixley for storagecosts.(c) Mrs Jolly is being pursued for a debt she personally guaranteed withoutthe company being pursued in the first instance.(d) Robertson Bixley has continued to return payments she has madetowards the debt.(e) Robertson Bixley has not responded to payment proposals she has putto it.(f) Mrs Jolly has entered into a payment plan in respect of the debt.Legal principles – setting aside a bankruptcy notice[7] Section 17 of the Insolvency Act 2006 (the Act) provides that a debtor commitsan act of bankruptcy when they fail to comply with the requirements of a bankruptcynotice served on them by a creditor within 10 working days after the date of serviceof that notice (if served in New Zealand).[8] Rule 24.10 of the High Court Rules 2016 extends the time for compliance untilan application to set aside the bankruptcy notice has been determined, where a validapplication has been made within the 10 working day limit.7[9] To have the bankruptcy notice set aside, the debtor must satisfy the Court thatthey have a genuine, triable cross claim (a counterclaim, set-off or cross-demand) thatis equal to or greater than the judgment debt or amount the debtor has been ordered topay, and that could not have been used as a defence in the action in which the relevantjudgment was given.87 High Court Rules 2016 at r 24.10 and sch 1(B2).8 Insolvency Act 2006, s 17(7); and Clark v UDC Finance Ltd [1985] 2 NZLR 636 (HC) at 637.[10] The Court of Appeal approved this test in Sharma v ANZ Banking Group (NZ)Ltd,9 and reaffirmed it in Robertson v ASB Bank Ltd,10 with a slight qualificationstating that "the better approach is to consider objectively whether it can be said agenuine "triable" cross claim exists on the facts as they now stand".11[11] The Court in Robertson held:12(a) the onus is on the debtor to show that they have a genuine triable crossclaim;(b) the debtor must show a genuine triable claim in terms of both liabilityand quantum;(c) not only the existence of a cross claim must be established, but also thatit is equal to or greater than the judgment debt, and could not have beenused as a defence in the proceeding of which the judgment was entered;(d) the summary nature of the procedure is wholly unsuitable for thedetermination of disputed questions of fact;(e) the Court need not accept uncritically, evidence that is inherentlylacking in credibility, for example where it is inconsistent withcontemporary documents, or inherently improbable.[12] The inability to use a counterclaim, set-off or cross-demand as a defence isprimarily a legal inability.13 A factual inability may suffice, but will require carefulscrutiny.149 Sharma v ANZ Banking Group (NZ) Ltd (1992) 6 PRNZ 386 at 389.10 Robertson v ASB Bank Ltd [2014] NZCA 597 at [19].11 Robertson v ASB Bank Ltd, above n 10 at [26-27].12 Robertson v ASB Bank Ltd, above n 10 at [22] and [32].13 Hardie v Booth [1992] 1 NZLR 356 at 361-362.14 Hardie v Booth, above n 13 at 362.[13] A judgment debtor whose defence has been rejected by the court, or who hasfailed to raise a defence which might have been available to them, cannot deploy thefailure of that defence as a cross claim in opposition to a bankruptcy notice later issuedby the judgment creditor.15 The right place for the debtor to raise the defence is byway of appeal against the judgment (or possibly, depending on the circumstances, byapplication for a re-hearing).16[14] If the debtor relies on claims in the bankruptcy proceeding that are essentiallythe same as those that were rejected by the court in the proceeding on which thebankruptcy notice is based, res judicata and issue estoppel may arise.17Is the bankruptcy notice defective?[15] The bankruptcy notice is not defective, because it attached a certified copy ofthe sealed order of the District Court dated 31 May 2022.[16] Section 29(1)(a) of the Act requires a bankruptcy notice to be in the prescribedform. The prescribed form required by r 24.8(3) of the High Court Rules 2016 is FormB2 which is contained in sch 1. Rule 24.8(3) requires that a certified copy of thejudgment or order on which the bankruptcy notice is based must be attached to thenotice.[17] A certified copy of the sealed order of the District Court dated 31 May 2022was produced in support of Robertson Bixley's request to the High Court to issue abankruptcy notice. The copy was certified as a true and correct copy of the originalorder by a practising barrister and solicitor authorised by law to take statutorydeclarations.18 It is not disputed that the certified copy of the sealed order of theDistrict Court was attached to the bankruptcy notice served on Mrs Jolly.15 Robert Osbourne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR24.10.03].16 Aluminium Plus Wellington Ltd (in liq) v Shaw [2017] NZHC 2607 at [58].17 Maori Trustee v Hill [2017] NZHC 2377 at [17], citing MinterEllisonRuddWatts v Hampton[2017] NZHC 1715.18 Oaths and Declarations Act 1957, s 9(1)(a).[18] In any event, s 418 of the Act provides that proceedings under the Act cannotbe invalidated or set aside because of any defect (including misdescription, misnomer,or omission) in a step that must be taken as part of, or in connection with, theproceeding, unless a person is prejudiced by the defect. This Court and the Court ofAppeal have recognised that a failure to refer to or attach a certified copy of theunderlying judgment is a defect that can be excused or rectified under s 418 (or itspredecessor).19[19] Mrs Jolly does not suggest that she has been prejudiced by some defect in thebankruptcy notice. The District Court judgment followed a defended hearing; andthere can be no suggestion that she was unaware of the judgment on which thebankruptcy notice is based.A genuine triable cross claim?[20] Mrs Jolly contends that she has a counterclaim against Robertson Bixley forservices rendered in Hong Kong, including providing storage space. At the hearingMrs Jolly also referred to advertising, marketing and translation services.[21] Mrs Jolly raised this counterclaim in the District Court proceeding that resultedin the judgment that underpins the bankruptcy notice. Judge Bergseng rejected theclaim.20[54] Regarding the contra deal, her evidence is that at some unidentified timeshe had a discussion with Mr Guy about the mutual benefit of them workingtogether by her assisting NRG to become established in Hong Kong. She saidshe offered to help Store NRG's product in her shop and storeroom, eventhough it took up a large proportion of her space. At the time her rent in HongKong was $10,000 per month. She said Mr Guy visited Hong Kong to moveNRG's product from her premises prior to her undertaking a move to newpremises. Because she was assisting Mr Guy with NRG, she understood thatshe would be getting accounting services throughout the 2017 period inrespect of all her businesses as part of a contra deal.[55] Mrs Jolly acknowledged that the issue of the contra was, in her words,"grey and messy from the get-go". She seems to accept some naivety on herpart and was simply wanting the best outcome for everyone.19 See Re Stocko Ltd, ex parte Denize HC Auckland CIV-2011-404-3557, 31 October 2011;Commissioner of Inland Revenue v Faloon [2016] NZHC 760, (2016) 27 NZTC 22-076 at [24];Sharma v Wati [2012] NZCA 195, (2012) 21 PRNZ 161 and Ministry of Justice v McGuire [2018]NZHC 2475 at [8].20 Robertson Bixley Ltd v Jolly, above n 1.[56] She raised an invoice addressed to Rodney Guy, representative of NRG,on 28 May 2018 in the sum of $25,000. The invoice is for:Storage and marketing liaison work in Hong Kong, as per Mr RodneyGuy's request for NRG products.Invoice and charges include storage for 4 months in Hong Kong forNRG pet food in the Honeybunch premises. Liaison and distributionand communication with logistics company, organising andmaintaining SKUs for products. Work done by Mrs Wendy Wong ontransactions for products and distribution of the products to pet shelters.Cost of GoGoVan and staff to distribute NRG products. Liaison andmarketing in social media for NRG see emails on request.Original agreement defaulted upon after receiving loaded charges notagreed upon by Mr Guy to myself therefore requires myself and mycompany to charge for services and rent for this period for NRG asrequested by Mr Rodney Guy on behalf of NRG.[76] Mrs Jolly counterclaims against Robertson Bixley in the sum of $28,500comprising $25,000 in respect of an unpaid invoice and a further $3,500 for13 appearances in Court that she has made.[77] Robertson Bixley denies it is liable for the invoice and notes that beingself-represented, Mrs Jolly is not entitled to claim costs. I agree.[78] Mrs Jolly says that the costs she claims in invoice 1452 of $25,000 wereoriginally not going to be the subject of any invoice, instead they were to beset-off against money that she owed Robertson Bixley for accounting workdone throughout 2017.[79] Mrs Jolly's evidence is that this was the agreement she entered into withMr Guy. She is unable to give any specifics of this agreement, nor is she ableto make any reference to any earlier discussions regarding any such contraarrangement.[80] Mr Guy in his evidence accepted that there may have been some form ofcontra deal between his father, who was a director of NRG, and storage costs.He denies that there has ever been any contra arrangement between himself,on behalf of Robertson Bixley, and Mrs Jolly.[81] Mrs Jolly effectively says that Mr Guy is being dishonest when he deniesthe existence of such a contra deal. This is despite her earlieracknowledgement that the issue of a contra was "grey and messy from the get-go."[82] The evidence does not establish that any such contra arrangement everexisted between Mr Guy and/or Robertson Bixley and Mrs Jolly. There is nosuggestion from Mrs Jolly that at any of the meetings throughout [2017], whenthe outstanding invoices were discussed between Mr Guy and Mrs Jolly, thatthere was ever any suggestion that the amount should be reduced pursuant tothe "contra" arrangement. It is inexplicable, if such a contra arrangementexisted, that on 11 May 2017 Mrs Jolly would write to Mr Guy and say:Thanks all. Rodney has sent me through a detailed statement, and Iam happy to have the amount of $23,886.11 deducted from the saleproceeds if you sell this for me.[83] Mrs Jolly's invoice is dated 28 May 2018. It is addressed to Rodney Guyrepresentative of NRG. By section 9 of the Evidence Act 2006 it was agreedthat in August 2016 Mr Guy visited Hong Kong for about seven days. Further,it was agreed that Mr Guy was a director of NRG between 23 May 2017 and31 March 20220.[84] The purpose of Mr Guy's visit to Hong Kong was to arrange for theremoval of NRG product being stored at Mrs Jolly's Hong Kong's premises.Accordingly, although the invoice is dated 28 May 2018 it is for work claimedto have been undertaken for NRG up to August 2016.[85] I do not accept as credible Mrs Jolly's evidence that there was any contraarrangement in respect of Robertson Bixley's fees throughout 2017. Whetherit is referred to as a counterclaim or a setoff, it is irrelevant for the purposes ofthese proceedings given it does not involve Robertson Bixley. It may be thatwas some form of arrangement between Mr Guy's father and Mrs Jolly.Whether there was is not relevant to the issues in these proceedings. Mr Guysnr has nothing to do with Robertson Bixley and money Mrs Jolly owes foraccounting services they have provided.[22] Mrs Jolly acknowledges that the counterclaim she describes now is the sameclaim she raised in the District Court. She says the difference is that whereas in theDistrict Court her evidence was that the arrangement giving rise to the counterclaimwas between her and Mr Guy, she now says the arrangement was in substance withRobertson Bixley. Additionally, she claims for her disbursements associated with thevarious court appearances.[23] Since the District Court judgment Mrs Jolly has served a statutory demand onRobertson Bixley for payment of an invoice for her counterclaim. Appended to thestatutory demand for $29,265 is a copy of "invoice 1452" which details the moniesclaimed. They are $25,000 for storage in Hong Kong and $4,265 for disbursementsrelating to the District Court and High Court proceedings. Robertson Bixley hasapplied to have the statutory demand set aside on the basis that a court has alreadydecided the issue.[24] This Court is not able to set aside or stay a bankruptcy notice on the basis thatthe judgment debtor has a counterclaim against the judgment creditor if thecounterclaim was raised as a defence in the proceeding that resulted in the judgmentagainst the judgment debtor. That is the situation here. It is clear from JudgeBergseng's judgment that in the District Court Mrs Jolly advanced her claim forstorage fees and Court-related disbursements, as set out in "invoice 1452", as acounterclaim against Robertson Bixley (not Mr Guy). She seeks to raise the samecounterclaim here. That counterclaim has already been made and rejected in theDistrict Court.[25] I understand Mrs Jolly to say that she now has better evidence of thearrangement and the nature of the services allegedly provided to Mr Guy/RobertsonBixley. If that is the case, the appropriate course is for her to apply for leave to appealthe District Court or for a rehearing because of fresh evidence.Robertson Bixley has returned payments[26] Mrs Jolly argues that the bankruptcy proceeding is an abuse of process becauseRobertson Bixley has continued to return payments she has tried to make, as a way ofsecuring her bankruptcy. She says that if Robertson Bixley had received her payments,the debt would have been paid some time ago and legal fees avoided. She says thatthis Court acknowledged this fact in an earlier decision to set aside a bankruptcy noticeserved on her by Robertson Bixley.[27] It seems that there were historic issues between the parties where RobertsonBixley returned some payment made by Mrs Jolly towards an earlier District Courtjudgment debt. That earlier judgment was set aside by consent when it becameapparent that the judgment was overstated.21 As a result, an earlier bankruptcy noticebased on that judgment and served by Robertson Bixley on Mrs Jolly, was set asideby consent.22[28] Mrs Jolly has not proffered evidence to substantiate the claim that RobertsonBixley has returned payments in respect of the present District Court judgment sealedon 31 May 2022. I understood her to acknowledge at the hearing that the returnedpayments she referred to in her application to set aside were those made before thatjudgment.21 Robertson Bixley Ltd v Jolly, above n 1 at [37]–[40].22 Jolly v Robertson Bixley HC Auckland CIV-2019-404-25-24, 11 August 2020 (Minute ofAssociate Judge Smith).[29] Accordingly, there is no basis for setting aside the bankruptcy notice becauseof returned payments.The judgment creditor should pursue Mrs Jolly's companies first[30] I make no comment on the merits of this argument, as it is a defence that shouldhave been raised by Mrs Jolly in the District Court. It is unclear whether she expresslydid so, but in any event, Judge Bergseng commented as follows:23[61] The terms of engagement clearly set out that Mrs Jolly personallyguarantees payment of the invoices in respect of work undertaken for hervarious companies.[62] Other than to deny liability, no evidence has been given by Mrs Jolly asto why she is not a guarantor of her companies' obligations to RobertsonBixley.[63] The evidence establishes that Mrs Jolly is personally liable in respect ofwork undertaken by Robertson Bixley in respect of her companies SoapOpera, Honeybunch and Honey Bunch NZ Limited.There is a payment plan in respect of the debt[31] The bankruptcy notice was issued on 11 August 2022 and served on Mrs Jollyon 13 August 2022.[32] On 9 September 2022, a Deputy Registrar of the District Court in Wellingtonmade an order for the judgment debt to be paid by instalments at the rate of $300 perweek. Payments under this order were to commence on 23 September 2022. NeitherMrs Jolly nor Mr Swan for Robertson Bixley were able to provide a copy of the order,but there is no dispute that the order was made on these terms. Mr Swan says that theorder was made pursuant to s 153 of the District Court Act 2016.[33] Section 153 provides that after judgment has been entered or an order made forthe payment of money, the Court may make an order that the money owing under thejudgment be paid in instalments if:(a) a financial statement is filed with the Court; or23 Robertson Bixley Ltd v Jolly, above n 1 at [61]–[63].(b) the judgment debtor provides the Court with information about thejudgment debtor's means for satisfying the judgment debt; and(c) a financial assessment hearing takes place.[34] In the present case, Mrs Jolly instigated the process by filing a financialstatement with the District Court. Robertson Bixley maintains that it was not notifiedthat a hearing was to be held, or that any orders were to be made. It has applied for areview and recission of the Deputy Registrar's instalment order. No hearing date hasbeen allocated for this review.[35] Mrs Jolly asks that the bankruptcy notice be set aside or stayed until after thathearing has taken place and after the hearing of Robertson Bixley's application to setaside her statutory demand.[36] There is no formal court order staying execution of the District Courtjudgment. Robertson Bixley accepts that in some circumstances, the existence of aninstalment order or arrangement in the District Court may operate as an implied stayof a bankruptcy proceeding.[37] The leading decision on implied stays on this basis is Telkie v Williamson.24 InTelkie Master Venning (as he then was) opined:25Although there appears to be no direct authority on the point, I find that wherea judgment debtor is making payment of a judgment debt by instalmentspursuant to an order under s 84E of the District Courts Act then that amountsto an implied stay of proceedings for the purposes of s 19(l)(d) of theInsolvency Act. A judgment creditor is not entitled to issue a bankruptcynotice whilst the instalments continue to be made in accordance with such anorder.[38] However, Robertson Bixley differentiates this situation because Mrs Jolly isnot making payments in accordance with the order and is therefore in default.Mr Swan submits that the mere existence of an order for payment of the judgment debt24 Telkie v Williamson (1996) 9 PRNZ 658.25 Telkie v Williamson above n 24, at 661.by instalments does not operate as a stay when the judgment debtor is not abiding theterms of the instalment order.[39] In an updating affidavit sworn on 31 January 2023, Mr Guy provides astatement accounting for payments Robertson Bixley has received from Mrs Jollyfollowing the entry of judgment against her in May 2022. Against an opening balanceof $17,587.39 on 1 April 2022, Mrs Jolly made two payments of $200 each on 7 and14 June 2022. The next payment, made on 21 November 2022, is for $60.01. Thereare then a series of payments through November and December 2022, sometimes dailypayments of $60 and occasionally a payment of $300. Payments cease on21 December 2022. Mrs Jolly explains that she stopped making the payments thenbecause Robertson Bixley had applied to overturn the Deputy Registrar's orders.[40] By my calculations, had Mrs Jolly paid in accordance with the payment plan,over the course of the 18 weeks from 23 September 2022, she would have paid $5,400.As it stands, she has paid a total of $3,101, leaving a balance of $14,486.39.[41] I do not consider that an implied stay arises in this case, for two reasons. First,as Master Venning (as he then was) said in Telkie v Williamson:26The rationale for the implied stay is that the creditor is deemed to have agreedwith the debtor to accept payments of the judgment debt by instalment, andnot enforce his or her rights to execute the judgment whilst those paymentsare made. Their rights to execution are suspended while the agreement is inforce: Debtor ex p Debtor.27[42] In that case, the order for payment by instalments was made under thepredecessor to s 153 of the District Court Act 2016, s 84E of the District Courts Act1947. That section provided that upon completion of an examination of the debtorunder s 84B of the District Courts Act 1947, the Court may after giving the judgmentcreditor and judgment debtor an opportunity to be heard, make an order for judgmentto be paid by instalments. In that case the judgment creditor had applied for theexamination.26 Telkie v Williamson above n 24, at 661.27 Debtor ex p Debtor [1908] 1 KB 344.[43] In the passage from Telkie v Williamson quoted above, Master Venningcontinued:28The instalment orders are only made after the judgment creditor and judgmentdebtor have an opportunity to be heard. If a judgment creditor does not wishto be prevented from exercising his rights to pursue bankruptcy proceedingshe or she could ask that an instalment order not be made at the conclusion ofthe examination. In that case the examination process would simply be usedto ascertain the debtor's financial situation. If the debt could realistically bepaid over a short period of time by instalments the creditor may decide to seekan order for payment by instalments but if, on the other hand, it was apparentat the conclusion of the examination the debt could not realistically be paidover a short period of time then the judgment creditor might decide to pursuebankruptcy proceedings. In such event the creditor should advise the Registrarof that and no order would be made. If a Registrar made an order for paymentby instalments but the creditor wished to pursue bankruptcy proceedings thens 84N provides the creditor may seek a review of the Registrar's decision by aDistrict Court Judge. The judgment creditor has those rights, even if it is thejudgment debtor that has applied for examination with a view to obtaining anorder that the debt be paid by instalments.[44] In contrast, Robertson Bixley does not appear to have been given theopportunity to be heard on Mrs Jolly's proposal to pay the judgment debt byinstalments. I note that s 153 of the District Court Act 2016 explicitly states that theDistrict Court may make an order for a judgment to be paid by instalments even if nohearing takes place, or, where a financial statement is filed in the Court by one party,the other party has not had an opportunity to make representation to the Court aboutthe financial statement.[45] Mr Guy has deposed that he has not been served with, nor have his solicitorsbeen served with, any application to the District Court by Mrs Jolly in respect of thejudgment debt. Robertson Bixley's solicitors have put in evidence file notes of theirconversations with Mr Guy and Robertson Bixley's former solicitor, in which theystate that neither of them received any notice that a financial examination of Mrs Jollywas to take place, or that a Deputy Registrar was going to make an order based onMrs Jolly's financial position. This is hearsay evidence but, in these circumstances, Iwill allow it.28 Telkie v Williamson above n 24, at 661.[46] On the basis that Robertson Bixley was not heard on Mrs Jolly's application topay by instalments of $300 per week, I do not consider that it can be deemed to haveagreed to accept these payments and not to enforce its rights to execute the judgmentby way of bankruptcy proceedings.[47] I have considered whether by receiving, and not returning the daily andmonthly payments made by Mrs Jolly from 21 November 2022, Robertson Bixley isdeemed to have agreed to the arrangement. I find that it has not, because it appliedpromptly, by way of interlocutory application dated 20 September 2022, to review theRegistrar's decision. Further, it is perhaps understandable that it has not returned thepayments, as Mrs Jolly has objected to this previously.[48] The second distinguishing factor is that Mrs Jolly has not strictly compliedwith the terms of the order. While the cumulative total of her payments is notinsignificant, she did not begin making payments until nearly two months after thedate ordered, she paid in different amounts, and she stopped making payments on21 December 2022.Judgment creditor not responded to payment proposals[49] Mrs Jolly says that she has repeatedly asked Robertson Bixley and theircounsel for a reconciliation of the amounts she has paid, and the sum said still owing,and no such reconciliation has been provided to her. Furthermore, she says throughJuly and August 2022 she made numerous attempts to settle the debt, includingoffering to pay $800 a week, increasing to $1,000 a week, with a further review inJanuary 2023. These emails are in evidence.[50] Robertson Bixley acknowledges that Mrs Jolly has requested reconciliations,but says they are not obliged to continue to provide regular reconciliations. As for thesettlement offers, Mr Guy deposes that the latest offers received from Mrs Jolly arenot acceptable to him.[51] Mr Guy is entitled to reject Mrs Jolly's offer to pay by instalments. As forreconciliation, it would have been a simple thing for Mrs Jolly to calculate, withreference to the sealed judgment and order for costs and bankruptcy notice, and herown bank statements, the amount she has paid since 2022, and therefore the balanceremaining. Further, I note in his affidavit dated 6 September 2022 that Mr Guyprovides a statement of account accounting for the payments received from Mrs Jollyfollowing the entry of judgment against her.[52] Finally, Mrs Jolly objects to the legal costs included in the bankruptcy notice.These legal costs related to the District Court proceeding against her and she wasordered to pay them to Robertson Bixley in a sealed order of that court.29 RobertsonBixley is able to demand that she pay those costs as part of the bankruptcy notice.Result[53] Mrs Jolly's application to set aside, or for a stay, of the bankruptcy noticeserved on her by Robertson Bixley is dismissed.[54] If the judgment sum remains unpaid at the end of today, Mrs Jolly will havecommitted an act of bankruptcy entitling Robertson Bixley to file proceedings to haveher adjudicated bankrupt.[55] In terms of costs, as the successful party Robertson Bixley are entitled to theircosts on a category 2B basis, and reasonable disbursements. They should file amemorandum with the Court.Observation[56] At the hearing I urged Mrs Jolly to engage legal counsel to advise her on herbest course of action. She has indicated that she wants to resolve matters withRobertson Bixley. I repeat my recommendation that she engages a lawyer to adviseher on her statutory demand proceeding, any bankruptcy proceeding that ensues andto negotiate a resolution with Robertson Bixley, if that is what she wants to do._____________________Associate Judge Gardiner29 Robertson Bixley Ltd v Jolly DC Papakura CIV-2020-055-000594, 31 May 2022 (Order of theCourt).