WHOLESALE CARS DIRECT (4 x 4) LIMITED v SMYTH [2018] NZHC 1166

WHOLESALE CARS DIRECT (4 x 4) LIMITED v SMYTH [2018] NZHC 1166 [22 May 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-1032[2018] NZHC 1166UNDER the Insolvency Act 2006IN THE MATTER of the bankruptcy of Kelvin SmythBETWEEN WHOLESALE CARS DIRECT (4 x 4)LIMITEDApplicantAND KELVIN SMYTHRespondentHearing: 22 May 2018Appearances: M Belesky for applicantE Cox for respondentJudgment: 23 May 2018JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[1] On or shortly after 17 January 2018 the respondent served a bankruptcy noticeon the applicant. This was based on a judgment originally issued by the District Courtat Wellington on 30 October 2017. The applicant of course had 10 working dayswithin which to respond.[2] On 1 February 2018 the applicant filed and served the application before me,that is to say an application for an order setting aside the bankruptcy notice.[3] The basis for this application was that the applicant had applied or wasintending to apply for an order setting aside the District Court judgment. It isunnecessary for me to outline the basis for that application. The application for anorder setting aside the bankruptcy notice being wholly dependent on the applicantbeing successful in having the District Court judgment set aside, the parties have beenforced to wait for the District Court to issue judgment. Judge Tompkins issued ajudgment dated 7 May 2018. His Honour refused to set aside the original judgmentdated 30 October 2017 but entered judgment for a lesser amount, reducing theprincipal amount of the judgment to $8,353.[4] The question now is how this Court should deal with the application before it.[5] Having reviewed the file and had the benefit of submissions from Mr Cox andMr Belesky, I am satisfied that the plaintiff is entitled to an order dismissing thisapplication. Equally, however, it seems to me to be appropriate to amend thebankruptcy notice so that it aligns with the District Court judgment upon which it isbased.[6] During the course of the hearing I enquired whether Wholesale Cars Directwas prepared to agree to extend the time during which Mr Smyth will now have tocomply with the amended bankruptcy notice. As Mr Cox said to me, there is no needfor a formal extension because whilst there may only be a matter of days remainingbefore the bankruptcy notice period expires, the reality is that Wholesale Cars Directwill not be able to commence proceedings for Mr Smyth's bankruptcy and get thosebefore the Court for some weeks. That should give Mr Smyth ample time to pay thedebt or make other arrangements with Wholesale Cars Direct.[7] Accordingly, I dismiss Mr Smyth's application, and order that the BankruptcyNotice be reduced to $8,028 (which takes into account payments totalling $325) pluscosts of $796.Associate Judge JohnstonSolicitors:Buckett Law, Wellington for applicantGibson Sheat, Wellington for respondent