GILBERT V ROBERTSON HC AK CIV 2007-404-7449

GILBERT V ROBERTSON HC AK CIV 2007-404-7449

The statutory demand should not have been served because the judgment creditor was required to concede that the monetary adjustment awarded to the judgment debtor was to be set off against the costs award; having withdrawn the bankruptcy notice unilaterally and thus conceded the relief, the judgment creditor must pay the costs of the application on a 2B basis together with disbursements to be fixed by the Registrar.

Citation
openlaw-39a0c0d6_2749_4e18_9956_f60f5a2b09e1.pdf
Parties
Applicant / Judgment Debtor: Evelyn Kaye Gilbert; Respondent / Judgment Creditor: Anne Ivres Robertson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 February 2008
Procedural Posture
Application to Set Aside Statutory Demand Under the Insolvency Act 1967 / Interlocutory Hearing on Application to Set Aside Bankruptcy Notice; Statutory Demand Withdrawn
Outcome
Bankruptcy notice withdrawn; judgment creditor ordered to pay costs of the set-aside application
Legal Topics
Statutory Demand, Set Off, Set Aside, Withdrawal of Bankruptcy Notice, Costs on Discontinuance
Insolvency Civil Procedure Costs Statutory Demand Set Off Set Aside Withdrawal of Bankruptcy Notice Costs on Discontinuance

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Parties

Evelyn Kaye Gilbert

Applicant / Judgment Debtor

Anne Ivres Robertson

Respondent / Judgment Creditor

Procedural Posture

Application to Set Aside Statutory Demand Under the Insolvency Act 1967 / Interlocutory Hearing on Application to Set Aside Bankruptcy Notice; Statutory Demand Withdrawn

Legal Issues

  1. 1 Whether the costs order could be enforced without first setting off the monetary adjustment awarded to the judgment debtor
  2. 2 Whether the statutory demand was properly served and could stand given the set-off position
  3. 3 Who should pay costs of the application after the judgment creditor withdrew the statutory demand

Ratio Decidendi

The statutory demand should not have been served because the judgment creditor was required to concede that the monetary adjustment awarded to the judgment debtor was to be set off against the costs award; having withdrawn the bankruptcy notice unilaterally and thus conceded the relief, the judgment creditor must pay the costs of the application on a 2B basis together with disbursements to be fixed by the Registrar.

Court Disposition

Bankruptcy notice withdrawn; judgment creditor ordered to pay costs of the set-aside application

Orders

  • Judgment creditor to pay the costs of and incidental to the application to set aside the bankruptcy notice on a 2B basis
  • Disbursements to be fixed by the Registrar