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Bicknell v McKinnon and anor [2007] NZCA 145 (20 April 2007)

Last Updated: 1 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA231/06
[2007] NZCA 145

BETWEEN PAUL DANIEL BICKNELL
Applicant

AND COLIN CHARLES MCKINNON
First Respondent

AND THE OFFICIAL ASSIGNEE
Second Respondent

Hearing: 16 April 2007

Court: O'Regan, Robertson and Wilson JJ

Counsel: No appearance by Applicant
T G Stapleton for First Respondent
P J Morris for Second Respondent

Judgment: 20 April 2007 at 3.30 pm

JUDGMENT OF THE COURT

Leave to appeal is refused in all eight matters.
____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1] This matter was listed as part of the Miscellaneous Motions List, but as there was no appearance from Mr Bicknell we resolved to deal with the matter entirely on the papers and did not hear oral submissions from either counsel present.
[2] We have considered the written material lodged by Mr Bicknell, the written submissions filed on behalf of each respondent and the reserved judgment of Andrews J on 6 December 2006: HC AKL CIV-2004-463-883.
[3] The applicant applied for leave to appeal out of time against eight decisions made by various Judges and Associate Judges in the High Court between 7 June 2005 and 22 September 2006. All appeals were filed outside the statutory time limit and accordingly leave was required.

Delay

[4] There is no evidence from Mr Bicknell as to the reasons for the delay which ranges, for the various applications, between 497 and 32 days. There is considerable vitriol directed towards judicial officers, but no explanation on this issue. It is hard to avoid the conclusion that there is no mistake or oversight involved on this critical issue. Rather it appears that Mr Bicknell, not having obtained the desired outcome from various interlocutory applications, simply failed to appeal within the statutory period.

Background facts

[5] Mr Bicknell is an undischarged bankrupt.
[6] Mr McKinnon is a commercial maize grower. In September 1996 he bought a new tractor and maize planter. The purchase was funded by way of chattel security.
[7] In December 1996, Messrs Bicknell and McKinnon entered into two agreements whereby Mr Bicknell purchased the machinery and Mr McKinnon agreed to buy the machinery back six months later for a price that reflected an agreed interest return for Mr Bicknell. This agreement was advantageous to both parties as Mr McKinnon would pay a lower rate of interest in the purchase price and Mr Bicknell would get a greater return than he could from a bank deposit.
[8] In June 1997, Messrs Bicknell and McKinnon agreed that the arrangement would "run on".
[9] In September 1997 Mr Bicknell sold the machinery to a third party. Mr McKinnon offered to pay the outstanding money owed on the machinery. Mr Bicknell refused. Mr Bicknell took possession of the machinery and invoiced Mr McKinnon for hire of the machinery since December 1996.
[10] Mr Bicknell sued Mr McKinnon claiming hire charges plus interest. Mr McKinnon disputed the claim and counterclaimed for special damages.
[11] Judge Rollo heard evidence over two days and found there was an implied term of the agreements between Messrs Bicknell and McKinnon that Mr Bicknell would sell the machinery back to Mr McKinnon. The Judge found in favour of Mr McKinnon and awarded damages and costs against Mr Bicknell.
[12] Mr Bicknell appealed the decision but did not file an application for stay.
[13] Mr McKinnon issued bankruptcy proceedings and on 7 June 2005 Mr Bicknell was adjudicated bankrupt. Mr Bicknell did not appear at the hearing.

The individual applications for leave

[14] The decisions against which Mr Bicknell seeks leave to appeal can be briefly described as follows:

(a) Order of adjudication in bankruptcy (7 June 2005)

[15] Upon being satisfied that the applicant had been served with the proceedings, Associate Judge Lang made an order of adjudication when Mr Bicknell did not appear.

(b) The dismissal of annulment application (15 August 2005)

[16] Associate Judge Lang dismissed the applicant’s application for annulment when Mr Bicknell failed to appear at the hearing.

(c) Dismissal of injunction application to stay notice of discontinuance (27 September 2005)

[17] Mr Bicknell sought to appeal Judge Rollo’s decision and the bankruptcy proceedings. The Official Assignee, in accordance with his powers under s 71 of the Insolvency Act 1967, agreed with Mr McKinnon that the appeal proceedings should be discontinued and accordingly applied to have the fixture vacated.
[18] Mr Bicknell filed an ex parte application for injunction staying and striking out the discontinuance. Frater J found that, as Mr Bicknell’s bankruptcy had been confirmed, he did not have standing to make the application. This application was properly dismissed.

(d) The judgment of John Hansen J rejecting jury trial application (12 July 2006)

[19] Mr Bicknell’s son applied to have Mr Bicknell’s bankruptcy annulled and sought, under s 7 of the Insolvency Act, to have disputed matters of fact tried before a jury.
[20] The Judge, after hearing argument, delivered an oral judgment rejecting the application for a jury trial. He held that as the application, in effect, sought to relitigate matters in the District Court the proceedings were likely to involve disputes about relevance in the annulment of bankruptcy and consequently the admissibility of evidence. Accordingly, John Hansen J held that a Judge would be in a better position than a jury to determine the matter as a whole.

(e) Ruling denying application for inspection (21 July 2006)

[21] Mr Bicknell made an ex parte application to inspect Mr McKinnon’s financial accounts for the 1998 and 1999 financial years.
[22] Keane J declined the application on two interconnected bases:

(a) the material sought by Mr Bicknell could have been obtained in the District Court where there was wide discovery and inspection powers, but Mr Bicknell chose not to do so; and
(b) the proceedings (for which discovery was sought) rested on the proposition that the record of the District Court showed that key witnesses lied and that the Judge was complicit in this. The application for inspection sought to go behind the District Court record (despite the fact that the appeal against this decision had been discontinued).

(f) Ruling in respect of bankrupt’s right of annulment application (25 July 2006)

[23] This was described by Mr Bicknell as a ruling by Keane J "in respect of my right to an annulment application". An applicant may apply to have his bankruptcy annulled at any time. An appeal against this ruling would serve no purpose, whatever the merits.

(g) Rulings in respect of applications for discovery, enlargement of time for filing documents and adjournment of date of hearing (11 September 2006)

[24] An application for adjournment of a fixture was declined by Associate Judge Abbott. A timetable had been set by John Hansen J in his oral ruling of 12 July 2006, but the Associate Judge granted an extension of time for the filing of affidavits which he timetabled.
[25] Associate Judge Abbott made a ruling on a further application for discovery (inspection of Mr McKinnon’s financial records) on 15 September 2006. The application for discovery was on the same terms as those heard by Keane J (21 July 2006). Associate Judge Abbott dismissed the application, adopting Keane J’s reasoning.
[26] These were essentially matters of case management and not amenable to appeal.

(h) Directions of Rodney Hansen J in respect of ex parte application for directions (22 September 2006)

[27] This was an order that an application be heard on notice and not on an ex parte basis.

Discussion

[28] The first three matters are concerned with the circumstances of Mr Bicknell’s being made a bankrupt, his first annulment application and an unsuccessful application for an injunction. There is nothing before us to indicate that there is any merit in Mr Bicknell’s criticism of these decisions.
[29] The matters (d) to (h) are interlocutory and case management matters arising in respect of the hearing which was held before Andrews J on 25 October 2006. They are now all moot.
[30] There is no explanation for delay. There is nothing which suggests that the overall interests of justice require that any of these matters, which are only of historical interest, require the attention of this Court: Havanco Ltd v Stewart [2005] NZCA 158; (2005) 17 PRNZ 622 at [5] (CA).
[31] The delays have been substantial. There is nothing which suggests there was ever any merit in any of the applications.
[32] Many of the applications were subsumed in the proceeding before Andrews J and thus subject to careful analysis, evaluation and determination in her reserved judgment of 6 December.

Result

[33] All applications for leave to appeal are refused.

Solicitors:
McKechnie Quirke & Lewis, Whakatane, for First Respondent
Stace Hammond, Hamilton, for Second Respondent

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[1]	This matter was listed as part of the Miscellaneous Motions List, but as there was no appearance from Mr Bicknell we resolved to deal with the matter entirely on the papers and did not hear oral submissions from either counsel present.
[2]	We have considered the written material lodged by Mr Bicknell, the written submissions filed on behalf of each respondent and the reserved judgment of Andrews J on 6 December 2006: HC AKL CIV-2004-463-883.
[3]	The applicant applied for leave to appeal out of time against eight decisions made by various Judges and Associate Judges in the High Court between 7 June 2005 and 22 September 2006. All appeals were filed outside the statutory time limit and accordingly leave was required.

[5]	Mr Bicknell is an undischarged bankrupt.
[6]	Mr McKinnon is a commercial maize grower. In September 1996 he bought a new tractor and maize planter. The purchase was funded by way of chattel security.
[7]	In December 1996, Messrs Bicknell and McKinnon entered into two agreements whereby Mr Bicknell purchased the machinery and Mr McKinnon agreed to buy the machinery back six months later for a price that reflected an agreed interest return for Mr Bicknell. This agreement was advantageous to both parties as Mr McKinnon would pay a lower rate of interest in the purchase price and Mr Bicknell would get a greater return than he could from a bank deposit.
[8]	In June 1997, Messrs Bicknell and McKinnon agreed that the arrangement would "run on".
[9]	In September 1997 Mr Bicknell sold the machinery to a third party. Mr McKinnon offered to pay the outstanding money owed on the machinery. Mr Bicknell refused. Mr Bicknell took possession of the machinery and invoiced Mr McKinnon for hire of the machinery since December 1996.
[10]	Mr Bicknell sued Mr McKinnon claiming hire charges plus interest. Mr McKinnon disputed the claim and counterclaimed for special damages.
[11]	Judge Rollo heard evidence over two days and found there was an implied term of the agreements between Messrs Bicknell and McKinnon that Mr Bicknell would sell the machinery back to Mr McKinnon. The Judge found in favour of Mr McKinnon and awarded damages and costs against Mr Bicknell.
[12]	Mr Bicknell appealed the decision but did not file an application for stay.
[13]	Mr McKinnon issued bankruptcy proceedings and on 7 June 2005 Mr Bicknell was adjudicated bankrupt. Mr Bicknell did not appear at the hearing.

[17]	Mr Bicknell sought to appeal Judge Rollo’s decision and the bankruptcy proceedings. The Official Assignee, in accordance with his powers under s 71 of the Insolvency Act 1967, agreed with Mr McKinnon that the appeal proceedings should be discontinued and accordingly applied to have the fixture vacated.
[18]	Mr Bicknell filed an ex parte application for injunction staying and striking out the discontinuance. Frater J found that, as Mr Bicknell’s bankruptcy had been confirmed, he did not have standing to make the application. This application was properly dismissed.

[21]	Mr Bicknell made an ex parte application to inspect Mr McKinnon’s financial accounts for the 1998 and 1999 financial years.
[22]	Keane J declined the application on two interconnected bases:

[24]	An application for adjournment of a fixture was declined by Associate Judge Abbott. A timetable had been set by John Hansen J in his oral ruling of 12 July 2006, but the Associate Judge granted an extension of time for the filing of affidavits which he timetabled.
[25]	Associate Judge Abbott made a ruling on a further application for discovery (inspection of Mr McKinnon’s financial records) on 15 September 2006. The application for discovery was on the same terms as those heard by Keane J (21 July 2006). Associate Judge Abbott dismissed the application, adopting Keane J’s reasoning.
[26]	These were essentially matters of case management and not amenable to appeal.

[28]	The first three matters are concerned with the circumstances of Mr Bicknell’s being made a bankrupt, his first annulment application and an unsuccessful application for an injunction. There is nothing before us to indicate that there is any merit in Mr Bicknell’s criticism of these decisions.
[29]	The matters (d) to (h) are interlocutory and case management matters arising in respect of the hearing which was held before Andrews J on 25 October 2006. They are now all moot.
[30]	There is no explanation for delay. There is nothing which suggests that the overall interests of justice require that any of these matters, which are only of historical interest, require the attention of this Court: Havanco Ltd v Stewart [2005] NZCA 158; (2005) 17 PRNZ 622 at [5] (CA).
[31]	The delays have been substantial. There is nothing which suggests there was ever any merit in any of the applications.
[32]	Many of the applications were subsumed in the proceeding before Andrews J and thus subject to careful analysis, evaluation and determination in her reserved judgment of 6 December.