New Zealand Case Law: Decisions & Judgments

Topic

Summary instalment order

Legal area

Court

28 Feb 2019

NORTH SHORE LASER AND SKIN CENTRE LIMITED v MENZIES [2019] NZHC 315

Citation

[2019] NZHC 315
Court

High Court

Under s352(2) of the Insolvency Act 2006 a summary instalment order operates to bar creditors from continuing proceedings in any court in respect of debts included in the order unless the Official Assignee gives permission; the High Court no longer has a residual discretion to adjudicate a bankruptcy application where a summary instalment order has been made; accordingly the creditor's application for adjudication is dismissed.
15 Oct 2018

COMMISSIONER OF INLAND REVENUE v YORKE [2018] NZHC 2668

Citation

[2018] NZHC 2668
Court

High Court

The Court adjudicated bankruptcy because (1) substituted service of the bankruptcy notice and application was properly effected, (2) identity of the respondent as the debtor was established by the student loan contract (matching name, date of birth and signature) and supporting evidence, (3) the respondent is insolvent with no viable alternatives to satisfy the judgment debt, and (4) the statutory exceptions to discharge under s 304 did not apply to the Commissioner's claims.
22 Jun 2015

CARTER HOLT HARVEY LIMITED v BRIAN SCHLEGEL [2015] NZHC 1414

Citation

[2015] NZHC 1414
Court

High Court

The creditor established the s13 requirements (debt, act of bankruptcy, timing); alternatives to bankruptcy were not available or viable; the interests of the creditor and the public (accountability for guarantees, protection of commercial community and risk from allowing an insolvent person to present as unbankrupt for financial services registration) outweigh the debtor's personal hardships; accordingly it was proper to exercise the discretion under ss36-37 to adjudicate the debtor bankrupt.
30 May 2014

SOUTHERN RECON LIMITED v SIRYJ [2014] NZHC 1193

Citation

[2014] NZHC 1193
Court

High Court

Creditor was entitled to bring the adjudication application given the debtor had not made agreed payments or provided financial information; the Court exercises discretion under s 41 and Part 14 to award costs, the proceeding is Category 2 warranting 2B scale, and the creditor is awarded costs and disbursements totalling $4,184, payable either via inclusion in the supervised estate under s 356(4)(a) or otherwise when the Summary Instalment Order supervision ends.
19 Mar 2014

FISTONICH BUILDING REMOVALS LIMITED v NICHOLLS [2014] NZHC 505

Citation

[2014] NZHC 505
Court

High Court

The statutory prerequisites under s13 were satisfied and, on balance, the public interest in adjudicating an insolvent debtor who cannot realistically pay his debts outweighed the private hardship; accordingly the court exercised its discretion to adjudicate Nicholls bankrupt despite limited practical monetary benefit to the creditor and made no order for costs.
18 Dec 2013

MCCREADY V GREEN CABS LIMITED AND BROWN CA698/2013 [2013] NZCA 646

Citation

[2013] NZCA 646
Court

Court of Appeal

The Registrar's refusal to dispense with security for costs was correct: no exceptional circumstances were shown to depart from the normal requirement for security, the appeal appeared to have limited merit and no public interest justification for waiver was identified, therefore security for costs of $5,880 was ordered.
4 Oct 2013

MCCREADY v GREEN CABS [2013] NZHC 2594

Citation

[2013] NZHC 2594
Court

High Court

Adjudication was ordered because the debtor's proposal was speculative, lacked reliable evidence of lump sums or increased income, would deliver only a modest return (circa 24 cents in the dollar) and therefore it was not just and equitable to refuse adjudication under s37.
23 Jul 2010

RESENE PAINTS LIMITED V ARIO ARIYANI HC AK CIV 2010-404-001644

Citation

openlaw-64a73aab_5926_4164_b4f1_53bc95238bde.pdf
Court

High Court

The adjudication order of 6 July 2010 is recalled and rescinded because the debtor's non‑appearance was inadvertent, he acted promptly to arrange payment, the order had not been sealed, and both the creditor and Official Assignee consented on the basis that the judgment debt and Official Assignee's agreed costs would be paid; recall is granted conditional on payment of specified sums by the deadline imposed.