WESTPAC NEW ZEALAND LIMITED v BOULTON and BOULTON [2014] NZHC 693

WESTPAC NEW ZEALAND LIMITED v BOULTON and BOULTON [2014] NZHC 693

A bankruptcy notice is not a "civil proceeding" under the Trans-Tasman Proceedings Act and therefore service of such a notice on a person in Australia still requires leave under the Insolvency Act and High Court Rules and a court order fixing the time for compliance; bankruptcy applications under s 13 are civil proceedings to which the Trans-Tasman Act applies; failure to obtain leave and to fix time rendered the bankruptcy notices nullities and the debtors did not commit acts of bankruptcy; failure to give Form 1 information for the bankruptcy applications was remediable and required adjournment to cure procedural non-compliance.

Citation
(2014) 22 PRNZ 183
Parties
Judgment Creditor: Westpac New Zealand Limited; Judgment Debtor: Lynette Olwyn Boulton; Judgment Debtor: Kevan Boulton
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 April 2014
Procedural Posture
Bankruptcy (insolvency Act 2006) / Applications for Adjudication — Hearing/ Judgment
Outcome
Both bankruptcy applications dismissed
Legal Topics
Service of Process, Bankruptcy Notice, Jurisdiction, Recognition and Enforcement, Procedural Defects
Insolvency Law Civil Procedure Trans Tasman Law Cross Border Insolvency Service of Process Bankruptcy Notice Jurisdiction Recognition and Enforcement +1 more

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Parties

Westpac New Zealand Limited

Judgment Creditor

Lynette Olwyn Boulton

Judgment Debtor

Kevan Boulton

Judgment Debtor

Procedural Posture

Bankruptcy (insolvency Act 2006) / Applications for Adjudication — Hearing/ Judgment

Legal Issues

  1. 1 Whether a bankruptcy notice is a "civil proceeding" under Part 2 subpart 1 of the Trans-Tasman Proceedings Act 2010
  2. 2 Whether a bankruptcy notice can be issued for service in Australia without the court fixing time for compliance under s 17(4)(b) of the Insolvency Act 2006
  3. 3 Whether a bankruptcy application under s 13 of the Insolvency Act 2006 is a civil proceeding under the Trans-Tasman Proceedings Act 2010

Ratio Decidendi

A bankruptcy notice is not a "civil proceeding" under the Trans-Tasman Proceedings Act and therefore service of such a notice on a person in Australia still requires leave under the Insolvency Act and High Court Rules and a court order fixing the time for compliance; bankruptcy applications under s 13 are civil proceedings to which the Trans-Tasman Act applies; failure to obtain leave and to fix time rendered the bankruptcy notices nullities and the debtors did not commit acts of bankruptcy; failure to give Form 1 information for the bankruptcy applications was remediable and required adjournment to cure procedural non-compliance.

Court Disposition

Both bankruptcy applications dismissed

Orders

  • Both bankruptcy applications dismissed.
  • Bankruptcy notices issued for service in Australia declared invalid; debtors did not commit acts of bankruptcy by non-compliance.