NEW ZEALAND POLICE v PRESCOTT [2022] NZHC 306

NEW ZEALAND POLICE v PRESCOTT [2022] NZHC 306 [28 February 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-002232[2022] NZHC 306BETWEEN NEW ZEALAND POLICEPlaintiffAND PETER RICHARD PRESCOTTDefendantHearing: 2 February 2022Appearances: P Shackleton and S Farnell for the PlaintiffDefendant in PersonJudgment: 28 February 2022JUDGMENT OF ASSOCIATE JUDGE GARDINERThis judgment was delivered by me on 28 February 2022 at 4.00 p.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors:Meredith Connell, Auckland[1] The New Zealand Police (the Police) seek an order adjudicatingPeter Richard Prescott bankrupt. The Police contend that Mr Prescott committedan act of bankruptcy when he failed to comply with a bankruptcy notice dated20 November 2020, served on him on 8 December 2020. Furthermore, thatMr Prescott owes the Police a debt of $27,710.46, comprised of costs awardsagainst him made by this Court, the Court of Appeal and the Supreme Court.[2] An application by Mr Prescott to set aside the bankruptcy notice was dismissedby Associate Judge Bell on 5 May 2021.1[3] Mr Prescott raises three categories of objection to the application foradjudication:(a) the Court does not have jurisdiction to adjudicate him bankrupt;(b) the requirements of s 13 of the Insolvency Act 2006 are not met;(c) there are active appeals that warrant the application being stayed orrefused;(d) he has other proceedings and alleged claims which must be "set-off"against the debt he owes the Police.[4] I will consider each of these grounds of opposition in turn. But first, more onthe background.BackgroundMr Prescott's traffic infringement[5] On 20 July 2016, a car registered in Mr Prescott's name was captured by aspeed camera travelling above the speed limit. Mr Prescott was charged withexceeding the speed limit.1 Prescott v Police [2021] NZHC 1004 [Bankruptcy notice decision].[6] Mr Prescott denied the charge. He subsequently failed to appear at a27 October 2016 hearing before two Justices of the Peace. The Justices found thecharge proved in his absence, ordering him to pay a fine of $80 and Court costs of$30.2[7] Mr Prescott appealed the Justices' decision. On 21 March 2018,Judge Tremewan dismissed that appeal.3Mr Prescott's attempted judicial review[8] Mr Prescott sought judicial review of Judge Tremewan's decision. On15 February 2019, Jagose J struck out that application and dismissed the proceedingon the grounds it was an abuse of process.4 His Honour awarded costs anddisbursements, making Mr Prescott liable for $6,943.96.[9] Mr Prescott unsuccessfully sought to recall Jagose J's decision.5 He thenapplied to the Court of Appeal for an extension of time to appeal against Jagose J'sdecision and to stay execution of the costs order. On 22 August 2019, the Court ofAppeal declined both applications, awarding the Police costs.6 This decision madeMr Prescott liable for a further $5,798.[10] Next, Mr Prescott sought leave to appeal to the Supreme Court against theCourt of Appeal decision. On 22 November 2019, the Supreme Court declined togrant leave and awarded costs to the Police of $2,500.7[11] The High Court, Court of Appeal and Supreme Court all indicated that judicialreview was an inappropriate procedure to challenge Mr Prescott's conviction, theproper course being to seek leave to bring a second appeal against Judge Tremewan'sdecision.82 Police v Prescott DC Waitakere CRI-2016-404-5144, 27 October 2016 at [1].3 Police v Prescott [2018] NZDC 5372 at [25].4 Prescott v Police [2019] NZHC 175 [Prescott (HC)] at [10]-[11].5 Prescott v Police HC Auckland CIV-2018-404-936, 28 February 2019 (minute of Jagose J) at [4].6 Prescott v Police [2019] NZCA 380 [Prescott (CA)] at [20]-[24].7 Prescott v Police [2019] NZSC 133 [Prescott (SC)] at [9].8 See Prescott (HC), above n 4, at [6]-[7]; Prescott (CA) above n 6, at [6] and [18]; and Prescott(SC), above n 7, at [3].Prescott's successful criminal appeal[12] Mr Prescott then sought leave to appeal Judge Tremewan's decision out oftime. Whata J granted leave on 5 June 2020.[13] Being a second appeal, Mr Prescott also required leave under s 237 of theCriminal Procedure Act 2011 to bring the appeal. On 27 August 2020, Lang J grantedleave for Mr Prescott to bring a second appeal. His Honour also allowed that appeal.9The Police's bankruptcy notice[14] On 20 November 2020, the Police issued a bankruptcy notice in respect ofthe unsatisfied costs award for $6,943.96 arising from Jagose J's decision of15 February 2019. That notice was served on Mr Prescott on 8 December 2020.[15] Mr Prescott applied on 11 December 2020 to set aside the bankruptcy notice.Mr Prescott's attempts to recall judicial review costs awards[16] Mr Prescott regarded his success on his criminal appeal as having effectivelyvoided the judicial review decisions of the High Court, Court of Appeal and SupremeCourt. He applied to each of those courts to set aside or recall their decisions.[17] Each Court declined to set aside or recall its decision.10 Jagose Jfurther declined leave to appeal against his refusal to recall his judgment of15 February 2019.11Mr Prescott's application to set aside the bankruptcy notice[18] On 5 May 2021, Associate Judge Bell dismissed Mr Prescott's application toset aside the bankruptcy notice. His Honour awarded costs to the Police.12 Thosecosts were later fixed in a decision of 27 May 2021 to be $12,308.50, plus9 Prescott v Police [2020] NZHC 2191 at [27].10 Prescott v Police [2021] NZHC 483 at [6]; Prescott v Police [2021] NZCA 24 at [7]; and Prescottv Police [2021] NZSC 18 at [9].11 Prescott v Police [2021] NZHC 941 at [10].12 Bankruptcy notice decision, above n 1, at [16]-[17].disbursements of $160.13 Mr Prescott takes issue with these costs and this issue formspart of his opposition to the Police's adjudication application.Police application for adjudication order[19] The Police filed and served a creditor's application for an adjudication orderon 2 August 2021.[20] The application seeks orders adjudicating Mr Prescot bankrupt and as to costs.It states Mr Prescott owes Police $27,710.46, comprising:(i) Amount due in accordance with paragraph3.2 of the attached judgment obtained by thejudgment creditor against Peter RichardPrescott in the Auckland High Court on 15February 2019 in CIV 2018-404-936$6,943.96(ii) Plus amount due in accordance withparagraph C of the attached judgmentobtained by the judgment creditor againstPeter Richard Prescott in the Court ofAppeal on 22 August 2019 under CA173/2019$5,798.00(iii) Plus amount due in accordance withparagraph B of the attached judgmentobtained by the judgment creditor againstPeter Richard Prescott in the Supreme Courton 22 November 2019 under SC 97/2019$2,500.00(iv) Plus amount due in accordance withparagraph 4 of the attached judgmentobtained by the judgment creditor againstPeter Richard Prescott in the Auckland HighCourt on 5 May 2021 under CIV-2020-404-2232$12,468.50Total due: $27,710.46[21] The application further states that Mr Prescott has committed an available actof bankruptcy by failing to comply with the bankruptcy notice dated20 November 2020 in the sum of $6,943.96. It states Mr Prescott has not satisfied theCourt he has a counterclaim, set-off or cross demand that equals or exceeds the amount13 Police v Prescott HC Auckland CIV-2020-404-2232, 27 May 2021 (minute of Associate JudgeBell) at [6]. The costs were assessed on a 2B basis.of the judgment debt and which he could not have set up in the action in which thejudgment or order was obtained.Principles applicable to applications for adjudicationInsolvency Act 2006[22] The Court may adjudicate a debtor bankrupt if a creditor has applied unders 13 for the debtor's adjudication; and the debtor has committed an act of bankruptcy.14[23] The criteria for when a creditor may apply for adjudication are set out in s 13.The debtor must owe the applying creditor(s) $1,000 or more and have committed anact of bankruptcy within three months of the application being filed; and the debt mustbe for a certain amount and payable either immediately or at a date in the future thatis certain.[24] Under s 17, a debtor commits an act of bankruptcy if a creditor has obtained afinal judgment or order against the debtor for any amount, the execution of which hasnot been halted by a court, and the debtor, having been served with a bankruptcynotice, has not complied with the requirements of the notice or otherwise satisfied theCourt that he or she has a cross-claim against the creditor.[25] Once the s 13 requirements are established, the creditor is prima facie entitledto an adjudication order.15 However, the Court has a discretion as to whether itadjudicates the debtor bankrupt.16 The Court may refuse to adjudicate a debtorbankrupt if the debtor is able to pay their debts; or it is just or equitable that the Courtnot make an order for adjudication; or for any other reason.17 The onus is on thedefendant to satisfy the Court not to make the order. As this Court has said:18 the petitioning creditor does not have an automatic right to obtain an orderof adjudication, nevertheless the onus in those circumstances is on the debtorto persuade the Court that an order should not be made.14 Section 11.15 See Baker v Westpac Banking Corp CA212/92, 13 July 1993 at 5 and 7; and Re Epirosa HCWellington B498/91, 6 March 1992 at 5 and 8.16 Section 36.17 Section 37.18 Kiwibank Ltd v Hutchin [2015] NZHC 1518 at [26]. See also Baker v Westpac Banking Corp,above n 15, at 5 and 7; and Re Epirosa, above n 15.[26] The Court of Appeal has observed that s 37 confers a "wide discretion"informed by various factors. These include whether the debtor is able to pay theirdebts over time, bearing in mind that bringing finality within a reasonable period isthe essence of bankruptcy proceedings; whether adjudication is conducive ordetrimental to the public interest; and whether adjudication would be pointless becausethe creditors are unlikely to receive any payment.19[27] The Court may also, in its discretion, halt or refuse adjudication when thejudgment underlying the bankruptcy notice is under appeal and that appeal is still tobe decided.20[28] I will now turn to each of the categories of objection raised by Mr Prescott.The Court does not have jurisdiction[29] Mr Prescott raised this objection in his notice of opposition to the applicationdated 14 October 2021 and an unsworn affidavit filed in support. Then, on5 December 2021, Mr Prescott purported to file and serve on the Police an "appearanceunder protest to jurisdiction" pursuant to r 5.49 of the High Court Rules 2016. Thisrepeated and expanded on the objection to jurisdiction made in his notice ofopposition. Mr Prescott filed and served a sworn, amended affidavit in support of hisnotice of opposition on 14 January 2022, which also addressed the Court's jurisdiction.[30] The Police object to Mr Prescott's appearance and objection to jurisdictionfiled on 5 December 2021, submitting that it is too late, was not timetabled byAssociate Judge Bell, and the arguments made are unsupported by affidavit evidence.[31] I will consider Mr Prescott's objection to jurisdiction because he raised theobjection in the first document he filed, being his notice of opposition.[32] Mr Prescott made lengthy oral submissions on this topic at the hearing. Heargues that:19 Body Corporate 68792 v Memelink [2018] NZCA 509, [2019] NZAR 127 at [15].20 Section 42.(a) he is a man known as "Peter-richard", not the defendant Peter RichardPrescott;(b) he, the man known as Peter-richard, is not "a person" within themeaning of the Insolvency Act 2006;(c) the defendant, Peter Richard Prescott, is a corporate entity registeredwith the Minnesota Secretary of State which has no contract orcommercial dealings with the Police, the Queen or the Ministry ofBusiness, Innovation and Employment;(d) therefore, the Police do not have standing to bring the application andthis Court does not have jurisdiction under the Insolvency Act 2006 toput the corporate entity Peter Richard Prescott into liquidation;(e) the New Zealand Police, the Courts and the Queen are fictions; and(f) because the Police have not rebutted by affidavit his objection tojurisdiction, including the above propositions, they must be accepted astrue facts.[33] I reject the submission that the Court does not have jurisdiction, for thefollowing reasons.[34] First, Mr Prescott's argument that he is not a "person" who is subject to theInsolvency Act 2006 is wrong. Mr Prescott made this argument in this Court before,in an application to set aside another bankruptcy notice.21 Associate Judge Bell,rejecting Mr Prescott's jurisdiction submission, explained why quite clearly this Courthas jurisdiction over Mr Prescott personally.22 Furthermore, on a review of a DeputyRegistrar's decision to refuse to waive the filing fee for an application for leave toappeal Associate Judge Bell's judgment out of time, Brown J in the Court of Appealagreed with the view of the Deputy Registrar, which coincided with that of Associate21 Prescott v Police [2017] NZHC 2701.22 At [27]-[29].Judge Bell, that Mr Prescott's proposition as to the meaning of "person" in theInsolvency Act is not arguable.23 When dismissing Mr Prescott's application for leaveto appeal against the decision of Brown J, the Supreme Court said:24[2] The point which the applicant wishes to advance is that he is not a"person", and thus not subject to the Insolvency Act 2006. We do not proposeto engage with this argument, save to say that is self-evidently wrong.[35] I concur with these earlier decisions. Plainly, Mr Prescott is a natural personand the Insolvency Act 2006 applies to natural persons.[36] Second, Mr Prescott's arguments that the Police, the Court and the Queen arefictions are also misconceived and incapable of serious consideration.[37] Third, the distinction Mr Prescott seeks to draw between the defendant PeterRichard Prescott and "the man" Peter-richard is nonsensical. On the one hand, heclaims that he, the man Peter-richard, is distinct from the defendant Peter RichardPrescott, which he says is a corporate entity. On the other hand, he states that he haschanged his name from Peter Richard Prescott to Peter-richard, implicitlyacknowledging that he was, before the purported change, known by the name PeterRichard Prescott. As evidence he provides a letter to the Registrar General of Land,Registrar General of the Department of Internal Affairs and Chief Executive Officerof the Ministry of Transport dated 6 March 2018 in which he informs them that PeterRichard Prescott is now to be known as "Peter". He also provides a copy of his birthcertificate dated 28 January 2010 which records his name as Peter Richard Prescott.These documents only serve to reinforce that "the man" Peter-richard and PeterRichard Prescott are one and the same person.[38] The costs awards were made by this Court, the Court of Appeal and theSupreme Court against Peter Richard Prescott. If Mr Prescott has decided to be calledby another name, that does not change anything. There is no evidence that he hasformally changed his name. Even if he has, that change is accommodated by a simplechange to the intituling. This Court's jurisdiction is unaffected.23 Prescott v Police [2018] NZCA 16 at [6].24 At [2].[39] Finally, the submission that because the Police have not rebutted by affidavithis assertions they must be accepted as true facts misunderstands the distinctionbetween factual evidence contained in affidavits and legal submission. Most if not allthe content of Mr Prescott's affidavits is legal submission, not evidence. Strictlyspeaking, most should be struck out as inadmissible for that reason. As Mr Prescottdoes not have legal representation the Police have not taken the point and nor do I.However, Mr Prescott needs to understand that the un-rebutted statements in hisaffidavits are no more than legal submissions which the Police have chosen to respondto in a global fashion. The presumption he seeks to enforce does not apply.[40] I therefore dismiss Mr Prescott's challenges to the jurisdiction of this Court.Requirements of s 13 are not met[41] Mr Prescott raises two arguments here. First, he argues that the Police'sapplication for adjudication was not filed within three months of the act of bankruptcyoccurring, as required by s 13(b). Mr Prescott's argument appears to be that the act ofbankruptcy arose 10 working days after service of the bankruptcy notice on8 December 2020, after which the Police had three months to file their creditor'sapplication for adjudication. The Police did not file their creditor's application foradjudication until 3 August 2021.[42] Mr Prescott has misunderstood the effect of the application to set aside thebankruptcy notice he filed on 11 December 2020. Rule 24.10 of the High Court Rulesprovides:24.10 Setting aside bankruptcy notice(1) If an application to set aside a bankruptcy notice cannot be heard untilafter the expiration of the time specified in the notice as the day on which theact of bankruptcy will be complete, the time is treated as extended until theapplication has been determined.(2) An act of bankruptcy is not committed by reason only of non-compliancewith the notice until the application has been determined.(emphasis added)[43] Accordingly, the time for compliance with the bankruptcy notice was extendeduntil Mr Prescott's application to set aside the bankruptcy notice was determined on5 May 2021. This was explained to Mr Prescott by Associate Judge Bell when hedelivered his decision dismissing Mr Prescott's application to set aside the bankruptcynotice on 5 May 2021:25[16] I dismiss Mr Prescott's application to set aside the bankruptcy notice.With the dismissal of the application, the time for complying with thebankruptcy notice has come to an end. The time for beginning a bankruptcyapplication against Mr Prescott has now started to run under ss 13 and 16 ofthe Insolvency Act 2006.(footnotes omitted).[44] The Police therefore had three months, from 5 May 2021 to 5 August 2021, tofile their creditor's application for adjudication. The Police filed their application foradjudication on 3 August 2021, which was, therefore, within time.[45] Second, Mr Prescott argues that because the debt is overstated, the requirementof s 13(c) that the debt is for a certain amount is not met. Mr Prescott's focus is onAssociate Judge Bell's award of costs (the Associate Judge Bell Cost Decision).26Mr Prescott takes issue with this costs award, maintaining that it is based on anoverstatement by counsel for the Police as to the actual hours worked on the Police'sopposition to Mr Prescott's application to set aside the bankruptcy notice. Mr Prescotthas filed a proceeding in the Waitakere District Court against Ms Alexandra Tumahai,a former employee of Meredith Connell and co-counsel representing the Police in thatapplication. In that proceeding, Mr Prescott seeks information from Ms Tumahaiabout Meredith Connell's fees and time records. He also alleges that Ms Tumahaibreached the Lawyers and Conveyancers' Act (Lawyers: Conduct and Client Care)Rules 2008 and committed various offences under the Crimes Act 1961. Ms Tumahaidenies the allegations. She says her calculation of the costs in respect of the defendedbankruptcy hearing was made with reference to Schedules 2 and 3 of the High CourtRules 2016.25 Bankruptcy notice decision, above n 1, at [16].26 Police v Prescott HC Auckland CIV-2020-404-2232, 27 May 2021 (minute of Associate JudgeBell).[46] Mr Prescott advanced the same arguments about the costs claimed by thePolice before Associate Judge Bell, which the Judge considered in his decision. TheJudge said:[3] Mr Prescott has filed two memoranda. In the first one he complainsthat counsel for police has not said what amounts to a "day" under schedules2 and 3 of the High Court Rules. He asks the court to make orders againstcounsel for the police, requiring her to say what a legal day is under the Rules.In his second memorandum, he objects to costs being fixed until thisinformation has been provided.[4] Mr Prescott is not legally qualified. Nevertheless, he has hadexperience of costs orders being made against him. I am aware from othercases in which I have heard him that he does have some knowledge of the law,albeit imperfect. He will know that under the High Court's Rules cases arecategorised according to their complexity. Category 2 is appropriate for astandard application to set aside a bankruptcy notice. That fixes the daily rate.There are time allocations for steps taken. The time allocations are A, B or C.The police have appropriately claimed under band B for each step.[5] In allocating time, the time allocation will not depend on the actualtime spent by a party on a step. Mr Prescott's enquiries as to the meaning of"day" are simply time-wasting stalling.[6] The police have correctly calculated costs. Accordingly, I fix costspayable by Mr Prescott at $12,308.50 plus disbursements of $160.00, a totalof $12,468.50.[47] Mr Prescott has not appealed the Associate Judge Bell Cost Decision to theCourt of Appeal. The time to bring that appeal has now expired.27 Therefore, theamount of the costs awarded against Mr Prescott in relation to his unsuccessfulapplication to set aside the bankruptcy notice is certain.[48] The Police note that on around 21 June 2021, Mr Prescott served on them anapplication for leave to appeal the Associate Judge Bell Cost Decision. Mr Prescottalso emailed a copy of this application to the Court Registry, but it was not acceptedfor filing as Mr Prescott did not pay the filing fee. In any case, Mr Prescott did notneed the leave of this Court to appeal the decision. It was appealable as of right inaccordance with ss 27 and 56(1) of the Senior Courts Act 2016. Counsel for the Policereferred me to earlier decisions of Associate Judge Bell on Mr Prescott's applicationsto set aside other bankruptcy applications, where the Judge spelt out the appealpathway to Mr Prescott. As noted, the time to make that appeal has expired.27 Court of Appeal (Civil) Rules 2005, r 29.[49] Similarly, the other costs awards that comprise the debt are certain.Mr Prescott's attempts to recall, review or appeal the judgments in the High Court,Court of Appeal and Supreme Court have already been dismissed.[50] Finally, even if Mr Prescott has doubts about the Associate Judge Bell CostDecision, it forms only part of the debt included in the creditor's application. TheCourt is entitled to adjudicate Mr Prescott bankrupt in respect of the balance of$14,791.[51] Although Mr Prescott did not specifically address s 13(d), I record that therequirement that the debt is immediately payable is also met. Mr Prescott did notapply for a stay of execution of Associate Judge Bell's cost order. The order isimmediately enforceable, as are the other High Court, Court of Appeal and SupremeCourt costs orders. Associate Judge Bell explained that the costs order of Jagose J wasimmediately enforceable in his judgment dismissing his application to set aside thebankruptcy notice.28Active appeals[52] Mr Prescott asks the Court to halt or refuse the application under s 42 of theAct because of two "active" appeals.29 The first is "an active appeal in play to havethe order of Justice Jagose set aside: CA173/2019". The second is the "application forleave to appeal the judgment of Associate Judge Bell served on the creditor on21 July 2021". At the hearing, Mr Prescott confirmed that it is these two appeals thathe relies on.[53] In fact, there are no active appeals. The judgment underlying the bankruptcynotice is the judgment of Jagose J dated 15 February 2019. There is no active appealin relation to that judgment (or indeed any of the decisions of Jagose J). ProceedingCA173/2019 refers to Mr Prescott's application for an extension of time to file anappeal against the judgment of Jagose J and for a stay of execution of the order forcosts made by Jagose J when delivering that judgment. The Court of Appeal declined28 Bankruptcy notice decision, above n 1, at [9], [10] and [13].29 Notice of opposition dated 14 October 2021 at [6.1] to [6.4].to extend the time to appeal and to stay execution of the costs order on22 August 2019. The Supreme Court subsequently declined leave to appeal the Courtof Appeal's decision.[54] Mr Prescott's application to set aside the Court of Appeal decision was furtherdeclined by the Court of Appeal on 24 February 2021. His application to recall theSupreme Court decision was dismissed on 5 March 2021. Mr Prescott's applicationto recall the Jagose J decision was dismissed on 12 March 2021 and Mr Prescott'ssubsequent application for leave to appeal that decision was dismissed on30 April 2021.[55] As I have already discussed, there is no active appeal against the AssociateJudge Bell Cost Decision. Even if there was, this is not the judgment underlying thebankruptcy notice, so the s 42 discretion is not engaged.Proceedings and claims by way of set-off[56] Mr Prescott refers to several other proceedings and alleged claims by way of"set-off" against the debt owed to the Police.30 These are:(a) two proceedings brought by Peter-richard against the Police and others,CIV-2021-044-01082 and CIV-2021-044-1079;(b) the District Court proceedings against Ms Tumahai;(c) a counterclaim "to be completed";(d) a "Police breach of contract to be completed"; and(e) an "action against Prosecuting Sergeant Coffey to be completed".[57] As the Police has established the s 13 requirements, they are prima facieentitled to an adjudication order. The onus is on Mr Prescott to persuade me to exercisemy discretion to refuse to adjudicate him bankrupt because he is solvent, or it would30 Notice of opposition at [7.1].be just and equitable to refuse, or for some other reason.31 I consider the proceedingsand claims Mr Prescott refers to in his notice of opposition in that context.[58] Mr Prescott signposted these potential claims against the Police at the hearingfor the application to set aside the bankruptcy notice. Associate Judge Bell recordedthat Mr Prescott did not rely on the claims to set aside the bankruptcy notice. AssociateJudge Bell informed Mr Prescott that if he wished to rely on them in any subsequentbankruptcy proceedings, he would need to provide good evidence. He said:32Mr Prescott did not adduce any evidence in support of those claims. If he doeswish to raise cross-claims against the police on a bankruptcy application, hewill need to show a good evidential basis for them.[59] Again, Mr Prescott has not adduced any evidence to substantiate the claimsthat he refers to in his notice of opposition. That is despite him having filed oneunsworn and two sworn affidavits in support of his opposition, and a further bundle ofdocuments during the hearing.[60] Considering the claims and potential claims listed at [56] in reverse order,nothing is known about the potential claims at (c) to (e). From their description inMr Prescott's notice of opposition, they have not yet been initiated. Mr Prescott didnot address them in his oral submissions. He has not filed any evidence relating tothese potential claims. They do not provide me with any cause to exercise mydiscretion to decline to make the order.[61] I have touched on the Tumahai proceedings at (b) already when consideringMr Prescott's argument that the requirements of s 13 are not met. Mr Prescott madelengthy oral submissions on the Police's conduct in claiming 2B costs following hisfailure to set aside the bankruptcy notice. His complaint is that the Police, throughtheir legal counsel, have claimed and been awarded costs that exceed the costs theyactually incurred. This, Mr Prescott maintains, breaches the general principle foundat r 14.2(1)(f) that an award of costs should not exceed the actual costs incurred by theparty claiming costs.31 Kiwibank Ltd v Hutchin, above n 15, at [25]-[26]; Baker v Westpac Banking Corp, above n 15, at4; and Re Epirosa, above n 15, at 5 and 7.32 Bankruptcy notice decision, above n 1, at [15].[62] It is not for me to decide the Tumahai proceeding, but I can form an impressionof the merits from the statement of claim,33 the memoranda as to costs filed by thePolice and Mr Prescott following Associate Judge Bell's dismissal of Mr Prescott'sapplication to set aside the bankruptcy notice, and the Associate Judge Bell CostDecision.[63] I can find no support for Mr Prescott's concern. Mr Prescott appears to havemisunderstood the Police's memorandum as to costs dated 26 May 2021 where theystated that because the High Court Rules prescribe the amount of time that can beclaimed for each step (measured in days or part days), the calculation is not dependenton actual time spent, but rather the time for each step prescribed by the rules. Fromthis statement, Mr Prescott seems to have inferred that the Police claimed scale coststhat exceeded the actual costs they incurred. But Christine Scott, Legal Counsel forthe Police, confirms in her affidavit in reply that the invoices issued by MeredithConnell and paid by the Police for their time spent opposing the application to setaside the bankruptcy notice exceed the costs awarded by Associate Judge Bell.34Furthermore, Ms Tumahai has filed an affidavit affirming that she simply calculated2B scale costs with reference to Schedules 2 and 3 in an orthodox fashion.35 AssociateJudge Bell found that Category 2 is appropriate for a standard application to set asidea bankruptcy notice. He also found that the Police had appropriately claimed underband B for each step.[64] Therefore, I am not persuaded that I should exercise my discretion to deny thePolice the order to which they are prima facie entitled, because of the Tumahaiproceeding. My impression is that the complaint is misconceived. Furthermore, theAssociate Judge Bell Cost Decision will stand irrespective of its outcome.[65] Finally, I turn to the two proceedings described at [56](a). Mr Prescott brieflyreferred to these proceedings in his notice of opposition to the Police's application.He did not address them in his unsworn/unaffirmed affidavit in support of hisopposition dated 14 October 2021, or the affidavit sworn and filed on 7 December33 Exhibit Q, affidavit in reply of Christine Margaret Scott affirmed 4 November 2021.34 Affidavit in reply of Christine Margaret Scott affirmed 4 November 2021 at [22].35 Affidavit of Alexandra Lydia Tumahai affirmed 4 November 2021 at [3].2021. In an affidavit in response affirmed on 4 November 2021, Ms Scott affirmedthat she was unaware of the proceedings and they had not been served on the Police.She then affirmed a supplementary affidavit on 1 February 2022 deposing that on24 December 2021 copies of proceedings with CIV numbers corresponding to thosedescribed in Mr Prescott's Notice of Opposition were left at the Orewa Police Stationcounter. She attached copies of the proceedings to her affidavit. Ms Scott deposesthat the Police's position is that the proceedings have not been properly served, andthat once service issues have been clarified, the proceedings will be defended by thePolice.[66] Ms Scott explains:36The claims relate to a traffic infringement notice issued to Mr Prescott inNovember 2017. Mr Prescott challenged the infringement notice and a hearingwas held before two Justices of the Peace on 17 April 2018. Mr Prescott didnot attend the hearing. Having heard evidence from the Police, the Justices ofthe Peace determined the charge was proved and Mr Prescott was fined $200being the amount of the infringement and Court costs of $30.Mr Prescott later sought leave to appeal out of time and appealed the decision.The matter came before Judge Fraser on 20 August 2020 who, followingdiscussion with the prosecuting Sergeant, dismissed the infringement notice.[67] Mr Prescott did not address these proceedings in his latest affidavit sworn on13 January 2022. There was no evidence concerning these proceedings in the bundleof documents he presented during the hearing. So, the only evidence to supportMr Prescott's appeal to the Court to refuse to make the adjudication order because ofthese counterclaims against the Police are copies of the proceedings provided by thePolice.[68] Turning to the proceedings, the plaintiff in both proceedings is "Peter-richard(the man)". In the 1079 proceeding, "Peter-richard" seeks to hold the Policevicariously liable for the actions of Officer Foran, who he claims arbitrarily stoppedhis car the day he was issued with the infringement notice, failed to inform him of thereasons for his detention and to promptly inform him of the nature and cause of thecharges against him, manipulated evidence, and with Officer Stace brought amalicious prosecution of him, in breach of the International Covenant on Civil and36 Updating affidavit of Christine Margaret Scott affirmed 1 February 2022 at [8]-[9].Political Rights (ICCPR), the New Zealand Bill of Rights Act 1990 (NZBORA) andthe Criminal Procedure Act 2011. He seeks an order for damages of $93,000 alongwith exemplary damages of $50,000.[69] In the 1082 proceeding, "Peter-richard" seeks to hold the Police vicariouslyliable for the alleged negligent acts of Officer Stace in relation to the hearing on17 April 2018. He claims that Officer Stace and Sergeant Hagen failed to promptlyinform him of the nature and cause of the criminal charge against him and acted in badfaith and with malice by bringing a malicious prosecution against him for the trafficinfringement, in breach of the ICCPR, the NZBORA and the Criminal Procedure Act2011. He seeks an order for damages of $74,000 according to a schedule attached tohis statement of claim. He also claims exemplary damages of $50,0000 against OfficerStace to "deter others [sic] Police prosecutors that may be tempted [to] defeat justicefor pecuniary gain".[70] As noted, the s 13 requirements being met, Mr Prescott has the onus ofsatisfying the Court that it should stay its hand. Mr Prescott has not taken any stepsto persuade me that it would be proper to do so to enable him to pursue theseproceedings. All I have before me are copies of the statements of claim, provided bythe Police. The claims concern a different traffic offence that occurred over four yearsago. Mr Prescott did not file the proceedings until over a year after the infringementnotice for that offence was dismissed; and after the Police filed this bankruptcyapplication. It is impossible to know whether the proceedings are genuine, or simplyan attempt to deflect the bankruptcy application. The proceedings have not beenproperly served on the Police and so have barely begun. Once service issues areresolved, the Police intend to defend them. They will not be determined for aconsiderable time, possibly years. These considerations weigh against the Courtrefusing to make the order due to these proceedings.[71] Furthermore, there is a significant public interest in orders of the courts beingmet. The debts that underpin the bankruptcy application are orders of this Court, theCourt of Appeal and the Supreme Court. The first of these orders was made somethree years ago. The public interest weighs heavily in favour of these orders finallybeing enforced.[72] I have considered whether there are any other grounds upon which the Courtmight exercise its discretion in favour of Mr Prescott.37 I have been unable to findany. Mr Prescott has not disclosed his financial circumstances. There is no suggestionthat he can pay the Police within a reasonable time, or at all.[73] Balancing these considerations, I reach the view that the discretion under s 37should not be exercised in favour of Mr Prescott.Result[74] I order that Peter Richard Prescott is adjudicated bankrupt. The order is timedat 4.00 pm.[75] The Police are entitled to their costs on a 2B basis with disbursements fixed bythe Registrar._____________________Associate Judge Gardiner37 With reference to the factors identified in Body Corporate 68792 v Memelink, above n 19, at [15].