New Zealand Case Law: Decisions & Judgments

Topic

Set‑aside application

Legal area

Court

17 Jul 2020

Complete Construction Ltd v Siemer [2020] NZHC 1740

Citation

[2020] NZHC 1740
Court

High Court

The recall application is dismissed because the Palmer J decision relied on was not of such clear, high authority to satisfy the Horowhenua exception, the matters challenged were substantive findings of fact and law already addressed in the judgment and are properly pursued by appeal, and no very special reason existed to justify recall; the judge further concluded the failure to obtain leave was an irregularity that did not render the setting aside application a nullity.
30 Aug 2018

GOLD BAND FINANCE LTD v STOKES [2018] NZHC 2263

Citation

[2018] NZHC 2263
Court

High Court

The debtor failed to establish that he had a cross-claim that he could not have asserted in the earlier proceedings; the asserted claims were the same claims litigated and rejected, the excluded memorandum did not create the necessary legal inability and the debtor did not pursue appeal or rehearing; accordingly s17 relief is not available and the application to set aside the bankruptcy notice is dismissed.
9 Aug 2018

MOFFAT ROAD LTD v NORTH HARBOUR MOTORS LTD (in liq) [2018] NZHC 2023

Citation

[2018] NZHC 2023
Court

High Court

The statutory demand was set aside because the applicant raised a genuine and substantial dispute as to whether the Nomination Deed required Moffat to reimburse the $60,000 deposits; the issue depended on contractual interpretation against a factual matrix and factual witnesses not before the Court, making the statutory demand procedure inappropriate for resolution.
14 Jun 2013

Commissioner of Inland Revenue v GJ Lupton [2013] NZHC 1451

Citation

[2013] NZHC 1451
Court

High Court

The application to set-aside the Bankruptcy Notice was dismissed because the judgment debtor expressly confirmed by email and direct communication that he had applied to be declared bankrupt and did not oppose adjudication, thereby effectively withdrawing the application; accordingly the Court awarded costs to the judgment creditor and ordered the file sealed due to inflammatory unsubstantiated material.
7 May 2013

RENTRANZ LIMITED V S.M.S DIESEL LIMITED HC AK CIV-2012-404-6754

Citation

openlaw-dc92c0ad_c465_4346_922a_c151511f268c.pdf
Court

High Court

Application to set-aside the statutory demand dismissed because applicant provided only unsubstantiated assertions and no material short of proof to establish a genuine and substantial dispute or a reasonably arguable counterclaim; therefore statutory demand stands; payment time extended and costs awarded to respondent.
15 Feb 2013

ALADDINS MOTOR INN LIMITED V BOWCORP HOLDINGS LIMITED HC PMN CIV-2011-454-412

Citation

openlaw-a345132c_7405_4f43_bee7_684a634e503a.pdf
Court

High Court

Adjournment granted because fairness and the interests of justice required that the applicant be given an opportunity to be properly represented and to file a reply to the respondent's affidavit so that the Court has all relevant material and submissions before determining the set-aside application; directions were given to reschedule the hearing and to allow time for a reply affidavit.
24 Jul 2012

THE COMMISSIONER OF INLAND REVENUE V CWE YIP HC PMN CIV-2011-454-656

Citation

openlaw-533b5410_089c_457c_adb8_2c0b6725835f.pdf
Court

High Court

The application to set aside the Bankruptcy Notice failed because the debtor had not complied with statutory dispute procedures (no timely NOPA), default assessments are deemed correct under s109 TAA, the Commissioner's discretion under s113 had been properly exercised and previously rejected on adequate evidence, the recent s113 request added nothing and did not create a cross-claim equal to the judgment debt; accordingly the Bankruptcy Notice was not set aside, an adjournment refused, and the debtor was ordered to comply by 31 July 2012 or face bankruptcy proceedings, with costs to the Comm…
29 Mar 2012

FLOAT FACTORY LIMITED v C QUIRK HC PMN CIV-2011-454-371

Citation

openlaw-6ab6e7cb_dd4f_4d11_b1d1_a83c32b5cca9.pdf
Court

High Court

Because the debtor failed to comply with the Bankruptcy Notice, did not apply to set aside or provide evidence of a defence, and the certified debt exceeded the statutory threshold, the debtor committed an act of bankruptcy and adjudication was properly ordered.
14 Nov 2011

KENT TRUST NO. 1 LIMITED V SCHOOL HOLDINGS LIMITED (IN LIQUIDATION) HC WN CIV-2011-485-1995

Citation

openlaw-99349d8c_e72f_4384_afc2_4093c995bf17.pdf
Court

High Court

Although the application to set aside was filed within the 10 working day filing deadline, it was not served on the respondent by the methods and within the time required by s 290(2)(b) and s 387; service by unsolicited email did not satisfy the statutory requirements and under precedent an unserved application is a nullity, therefore the application is dismissed.
11 Nov 2011

BRC LIMITED V R PATEL & NG PATEL HC WN CIV-2011-485-1322

Citation

openlaw-a9b22b83_187b_42fe_badd_ac8ebc8b1628.pdf
Court

High Court

Section 79 of the Construction Contracts Act bars the judgment debtors from relying on disputed counterclaims or set‑offs to set aside the Bankruptcy Notices; the GST error in the first adjudication justified amendment of the Bankruptcy Notices to the corrected reduced sums rather than setting them aside; the judgment debtors failed to prove a real risk the payee would be unable to repay so no interim relief was warranted; accordingly the set‑aside applications were dismissed but the Notices were amended and costs awarded to the judgment creditor.