New Zealand Case Law: Decisions & Judgments

Topic

Court discretion under s37

Legal area

Court

28 Nov 2018

BURT v YIANNAKIS [2018] NZHC 3102

Citation

[2018] NZHC 3102
Court

High Court

Adjudication refused because there was a genuine and substantial dispute about the interpretation and sequencing of reciprocal obligations in the Consent Orders, the debtor appears able to pay the claimed sum, and in the exercise of the court's discretion under s37 it was not just and equitable to make an adjudication order; accordingly bankruptcy jurisdiction was not the correct forum to resolve the contractual dispute and no determination on service was required.
23 Mar 2018

THE COMMISSIONER OF INLAND REVENUE v STEPHENS [2018] NZHC 519

Citation

[2018] NZHC 519
Court

High Court

The Court found all s13 and s17 jurisdictional facts established; given the debtor's prolonged and significant tax non-compliance, ongoing defaults, credible evidence suggesting possible property interests and sale proceeds, and the statutory and public interest in tax collection and accountability, the discretion under s37 was exercised to adjudicate. Personal, cultural and career harms did not outweigh the public interest and the need for Official Assignee investigation and accountability.
2 Aug 2011

THE COMMISSIONER OF INLAND REVENUE V PO BARNETT AS TRUSTEE IN THE BARNETT FAMILY TRUST HC WN CIV-2011-454-29

Citation

openlaw-50df4348_9a63_4c35_a13d_aee509617184.pdf
Court

High Court

The court found s13 satisfied: the District Court judgment for $652,863.25 exceeded the $1,000 threshold, the debtor failed to comply with a Bankruptcy Notice within three months constituting an act of bankruptcy, and the debt was certain and payable; the debtor produced no evidence he could pay and his defenses, including that the judgment was a bill of exchange, were legally untenable under the Bills of Exchange Act 1908, so the court exercised its discretion under s37 to grant adjudication and adjudicated the debtor bankrupt.
19 Jul 2010

VKRUGER V ANZ NATIONAL BANK LTD HC HAM CIV 2009-419-001468

Citation

openlaw-4d378c32_62c1_485e_9dea_ef2665a78c79.pdf
Court

High Court

The Court found the jurisdictional requirements under Insolvency Act 2006 s13 were satisfied and, applying the residual discretion in s37 and established authorities (Eide, McHardy, Re Fidow), concluded the debtor did not demonstrate sufficient reason to refuse adjudication given the large indebtedness, absence of an approved proposal and the public interest; therefore an adjudication order was made against Vernon Kruger.
21 May 2010

THE COMMISSIONER OF INLAND REVENUE V JH PRICE (IN BANKRUPTCY) HC AK CIV-2008-404-4370

Citation

openlaw-2eb542e2_a1da_4e7a_8a8e_92670808b4d1.pdf
Court

High Court

The debtor committed an act of bankruptcy by failing to comply with a bankruptcy notice served in respect of a final District Court judgment; the debtor had no viable cross-claim or set-off (prohibited in Crown tax recovery and assessments are deemed correct absent timely objections); the debtor demonstrated inability to pay and presented no equitable grounds to refuse adjudication under s37; consequently an order for adjudication was made.
26 Feb 2009

JOHN V ANZ NATIONAL BANK LIMITED HC HAM CIV 2008-419-001576

Citation

openlaw-b7e556bd_5de2_4400_9970_f99c57dafe52.pdf
Court

High Court

The Court found the jurisdictional prerequisites of s13 were satisfied (judgment debt unpaid, act of bankruptcy, timely application, sum certain and payable), and having considered s37 discretion concluded there was insufficient evidence or prospects to refuse adjudication (debtor's claims unsubstantiated, major assets offshore, no security for creditor); therefore the Court adjudicated David Paul John bankrupt and ordered his affairs to be placed under the Official Assignee.

New Zealand Case Law

BURT v YIANNAKIS [2018] NZHC 3102

THE COMMISSIONER OF INLAND REVENUE v STEPHENS [2018] NZHC 519

THE COMMISSIONER OF INLAND REVENUE V PO BARNETT AS TRUSTEE IN THE BARNETT FAMILY TRUST HC WN CIV-2011-454-29

VKRUGER V ANZ NATIONAL BANK LTD HC HAM CIV 2009-419-001468

THE COMMISSIONER OF INLAND REVENUE V JH PRICE (IN BANKRUPTCY) HC AK CIV-2008-404-4370

JOHN V ANZ NATIONAL BANK LIMITED HC HAM CIV 2008-419-001576