J M MITCHELL V NEWBURY RACING & BREEDING LIMITED HC WN CIV-2007-454-846 [2009] NZHC 871 (23 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                           CIV-2007-454-846


                  IN THE MATTER OF             the Insolvency Act 1967

                  AND

                  IN THE MATTER
OF             JUDITH MARY MITCHELL
                                               Judgment Debtor

                  AND       
                  NEWBURY RACING & BREEDING
                                               LIMITED
                             
                 Judgment Creditor


Hearing:          23 July 2009

Appearances: J. Tannahill & L. Goodman - Counsel for the Judgment
Creditor
             G.A. Paine - Counsel for Judgment Debtor

Judgment:         23 July 2009


              ORAL JUDGMENT OF ASSOCIATE
JUDGE D.I. GENDALL




Solicitors:       Goodmans, Solicitors, PO Box 1439, Palmerston North
                  Fitzherbert Rowe,
Lawyers, Private Bag 11016, Palmerston North




J M MITCHELL V NEWBURY RACING & BREEDING LIMITED HC WN CIV-2007-454-846 23 July
2009

[1]    Before the Court is an application by the judgment creditor seeking an order
for adjudication in bankruptcy of the
judgment debtor, Judith Mary Mitchell ("Mrs.
Mitchell").


[2]    The judgment debt which is the foundation for this application
is a long
outstanding judgment against the judgment debtor for the sum of $109,677.48. With
interest and costs claimed by the judgment
creditor added to that sum, the total debt
claimed from the judgment debtor is $181,255.35.


[3]    The circumstances surrounding
the present application in large measure
mirror those relating to a bankruptcy proceeding brought against the judgment
debtor's husband,
Robin Frank Mitchell, in this Court under proceedings CIV-2007-
454-519.


[4]    In a judgment I have issued today in those related
proceedings an order was
made adjudicating of the judgment debtor's husband, Mr. Mitchell bankrupt.


[5]    The reasons outlined
in that judgment apply to a large extent to the present
application.


[6]    In addition, however, I need to note that Mr. Paine
who appeared for the
judgment debtor again today suggested before me that an order for adjudication
should be declined here, but
again purely on humanitarian grounds. Those grounds
were that Mrs. Mitchell who has no assets and lives in rented accommodation is
of
course engaged in a process which includes the full-time care of her husband, Mr.
Mitchell, given that he has recently suffered
a severe stroke and is fully
incapacitated.


[7]    For these reasons, Mr. Paine argued that the Court should exercise its
discretion
here on humanitarian grounds to refuse the order for adjudication sought
with respect to the judgment debtor, Mrs Mitchell.


[8]
   Again, for the reasons I have outlined largely in the related judgment in the
proceedings CIV-2007-454-519, but stressing in particular
the possibility that the

Official Assignee once involved in her affairs, might after full consideration wish to
pursue the claim
which the judgment debtor, Mrs. Mitchell and her husband Mr.
Mitchell may have against Fonterra for the benefit of the judgment debtor's
creditors
generally, I am satisfied here that this is also not an appropriate case for an order for
adjudication to be refused.


[9]    That said the application before the Court succeeds.


[10]   An order is now made adjudicating the judgment debtor, Judith
Mary
Mitchell, bankrupt.


[11]   Costs are awarded to the judgment creditor on a 2B basis (certifying for one
counsel only) together
with disbursements as fixed by the Registrar.


[12]   This order is timed at 10.21 am.




                                    
                  `Associate Judge D.I. Gendall'