MYRIAD INTERNATIONAL LIMITED v L HERZOG [2018] NZHC 1690

MYRIAD INTERNATIONAL LIMITED v L HERZOG [2018] NZHC 1690

The Court held the debtor has genuine, triable cross claims which are of sufficient substance and could not lawfully have been finally determined as defences in the interlocutory statutory demand proceedings; accordingly the bankruptcy notice must be set aside.

Citation
[2018] NZHC 1690
Parties
Judgment Creditor: Myriad International Limited; Judgment Debtor: Lawrence Herzog
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 July 2018
Procedural Posture
Application to Set Aside Bankruptcy Notice / Judgment
Outcome
Application to set aside bankruptcy notice granted
Legal Topics
Statutory Demand, Cross Claim Under S17 Insolvency Act 2006, Set Aside Bankruptcy Notice, Inherent Jurisdiction, Liquidation, Shareholder Remedies S174 Companies Act 1993, Calculation of Costs
Insolvency Bankruptcy Companies Law Civil Procedure Costs Statutory Demand Cross Claim Under S17 Insolvency Act 2006 Set Aside Bankruptcy Notice +4 more

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Parties

Myriad International Limited

Judgment Creditor

Lawrence Herzog

Judgment Debtor

Procedural Posture

Application to Set Aside Bankruptcy Notice / Judgment

Legal Issues

  1. 1 Whether debtor has a cross claim of true substance under s17 Insolvency Act 2006
  2. 2 Whether the cross claim is equal to or greater than the judgment debt
  3. 3 Whether the cross claim could have been raised as a defence in the proceedings giving rise to the judgment debt

Ratio Decidendi

The Court held the debtor has genuine, triable cross claims which are of sufficient substance and could not lawfully have been finally determined as defences in the interlocutory statutory demand proceedings; accordingly the bankruptcy notice must be set aside.

Court Disposition

Application to set aside bankruptcy notice granted

Orders

  • Bankruptcy notice set aside
  • No costs awarded to the self-represented applicant pursuant to Joint Action Funding Ltd v Eichelbaum