New Zealand Case Law: Decisions & Judgments

Topic

Just and equitable discretion

Legal area

Court

6 Jul 2021

L F KENNA TRUSTEE LIMITED v CHANG [2021] NZHC 1678

Citation

[2021] NZHC 1678
Court

High Court

The debtor failed to apply to set aside the default summary judgment and provided no evidence of fraud, collusion or miscarriage of justice to justify the Court going behind that judgment; accordingly, and because the debtor did not show adjudication would be unjust or inequitable despite limited sympathy for pandemic-related hardship, the creditor's application to adjudicate the debtor bankrupt was granted, with a short indulgence to allow payment before the order takes effect.
29 Jan 2019

STRATA TITLE ADMINISTRATION LTD v TAO [2019] NZHC 461

Citation

[2019] NZHC 461
Court

High Court

The court refused the stay and granted adjudication because the statutory jurisdictional requirements were met, the debtor's objections were procedurally weak and substantively unpersuasive, potential impecuniosity did not preclude the need for Official Assignee investigation into possible beneficial interests in the property held in parents' names, and the detriment to the parents did not outweigh the public interest in restraining further meritless litigation and allowing orderly administration of the debtor's affairs.
15 Oct 2018

MAO v INNO CAPITAL NO. 4 LTD [2018] NZCA 433

Citation

[2018] NZCA 433
Court

Court of Appeal

There was sufficient evidence that the company was unable to pay its debts (unsatisfied statutory demand, solicitor's certificate and supporting affidavit); substitution to Inno Capital No.4 was properly effected under r 4.52 and any procedural irregularity could be excused under r 1.5; given the company's insolvency, outstanding creditors and public interest it was not just and equitable under s 250 to terminate the liquidation; appeal dismissed.
13 Sept 2017

THE COMMISSIONER OF INLAND REVENUE v FAGAN [2017] NZHC 2214

Citation

[2017] NZHC 2214
Court

High Court

The Commissioner satisfied s13; Mr Fagan is presently unable to pay and his asserted sources of funds are speculative and not demonstrably imminent; his prior default and criminal history do not justify withholding adjudication; exercising the s37 discretion, the court adjudicated the debtor bankrupt.
29 Oct 2014

WESTCITY ENTERPRISES LIMITED v NARENDRANATH RAMAKRISHNA PILLAI [2014] NZHC 2651

Citation

[2014] NZHC 2651
Court

High Court

The statutory requirements of s13 were satisfied (debt certain and due, act of bankruptcy within three months, amount exceeds $1,000) and the discretionary factors under s37 did not outweigh the creditor's entitlement; the debtor's failure to honour the settlement and insufficient just and equitable reasons justified making the adjudication order.
19 May 2009

VICTORIA JANE CARTER V VIREN PRASAD JHAGROO HC AK CIV 2008-404-005865

Citation

openlaw-b4a7bd85_5de2_4a96_b4ff_a09c9e862696.pdf
Court

High Court

Adjudication ordered because the respondent's asserted relationship property cross-claim lacked substance and specific evidence, the issues had effectively been litigated and rejected in earlier summary judgment proceedings (with no appeal), and there were no just and equitable grounds or evidence of ability to pay that would justify refusing adjudication; accordingly the bankruptcy adjudication was appropriate.
23 May 2006

ANCHORAGE HOLIDAYS LIMITED V STEVENSON AND EARL AS TRUSTEES OF THE STEVENSON FAMILY TRUST HC NEL CIV 2005 442 220

Citation

openlaw-d428eb24_6629_4eaa_8742_7ce4c1273aba.pdf
Court

High Court

Section 129A does not apply to partial encroachments and is limited to buildings erected entirely on the wrong land; s129 relief is discretionary and will not be granted where the encroachment was intentional or arose from gross negligence by the predecessors and the successor company is tainted by that conduct; on the facts the predecessor intentionally encroached and the company knew of the encroachment at transfer, so relief under s129 and s129A is refused.

New Zealand Case Law

L F KENNA TRUSTEE LIMITED v CHANG [2021] NZHC 1678

STRATA TITLE ADMINISTRATION LTD v TAO [2019] NZHC 461

MAO v INNO CAPITAL NO. 4 LTD [2018] NZCA 433

THE COMMISSIONER OF INLAND REVENUE v FAGAN [2017] NZHC 2214

WESTCITY ENTERPRISES LIMITED v NARENDRANATH RAMAKRISHNA PILLAI [2014] NZHC 2651

VICTORIA JANE CARTER V VIREN PRASAD JHAGROO HC AK CIV 2008-404-005865

ANCHORAGE HOLIDAYS LIMITED V STEVENSON AND EARL AS TRUSTEES OF THE STEVENSON FAMILY TRUST HC NEL CIV 2005 442 220