SHEPHERD V PEARCE (NEE MARSHALL) HC AK CIV-2009-404-008472

SHEPHERD V PEARCE (NEE MARSHALL) HC AK CIV-2009-404-008472

The applicant failed to establish an arguable counter‑claim or set‑off that could not have been raised in the New South Wales proceedings; the evidence for the $140,000 dividend claim is inadequate and likely offset, and the $36,000 advance is unsupported and could have been raised earlier; accordingly the bankruptcy notice is not set aside.

Citation
openlaw-9c5ea0fb_bd27_4304_b728_07e821915c48.pdf
Parties
Applicant (judgment Debtor): Graydon Aubrey Shepherd; Respondent (judgment Creditor): Julie Gail Pearce (nee Marshall)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 May 2010
Procedural Posture
Bankruptcy (insolvency Act 2006) / Application to Set Aside Bankruptcy Notice (statutory Demand)
Outcome
Application dismissed; bankruptcy notice not set aside.
Legal Topics
Statutory Demand, Set Off/counterclaim, Estoppel by Acquiescence, Failure to Raise Claim in Prior Proceedings
Insolvency Partnership Civil Procedure Recognition of Foreign Judgments Statutory Demand Set Off/counterclaim Estoppel by Acquiescence Failure to Raise Claim in Prior Proceedings

Case Brief

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Parties

Graydon Aubrey Shepherd

Applicant (judgment Debtor)

Julie Gail Pearce (nee Marshall)

Respondent (judgment Creditor)

Procedural Posture

Bankruptcy (insolvency Act 2006) / Application to Set Aside Bankruptcy Notice (statutory Demand)

Legal Issues

  1. 1 Whether the debtor has an arguable counter‑claim or set‑off that could not have been raised in the New South Wales proceedings
  2. 2 Whether the claimed unpaid dividends of $140,000 constitute a valid set‑off
  3. 3 Whether the $36,000 advance is a personal debt or a partnership debt and thus available as a set‑off

Ratio Decidendi

The applicant failed to establish an arguable counter‑claim or set‑off that could not have been raised in the New South Wales proceedings; the evidence for the $140,000 dividend claim is inadequate and likely offset, and the $36,000 advance is unsupported and could have been raised earlier; accordingly the bankruptcy notice is not set aside.

Court Disposition

Application dismissed; bankruptcy notice not set aside.

Orders

  • Application dismissed
  • Parties to confer on costs; if unable to agree, Court will hear the parties at 9 a.m. on a convenient date