Waitomo Adventures Limited v O'Hagan [2014] NZHC 1763 (28 July 2014)

Last Updated: 14 August 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-822 [2014] NZHC 1763

BETWEEN	WAITOMO ADVENTURES LIMITED Plaintiff
AND	BRENT O'HAGAN Defendant

Hearing:	28 July 2014
Appearances:	Mr Braun for plaintiff Mr O'Hagan defendant in person
Judgment:	28 July 2014

_{ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE}

WAITOMO ADVENTURES LIMITED v O'HAGAN [2014] NZHC 1763 [28 July 2014]

[1] On 21 February 2014 I issued a judgment in this matter ordering that the bankruptcy proceedings were to be subject to a halt order until further order of the Court. At the time that that order was made it was the intention of the judgment debtor to take steps to set aside the underlining debt. That underlying debt arose out of Employment Court proceedings in which the judgment debtor was unsuccessful. Costs orders were made against him and that gave rise to the bankruptcy proceeding.

[2] The judgment debtor subsequently commenced bankruptcy proceedings in the Tauranga High Court in which it was alleged that the orders upon which the bankruptcy proceedings were based had been obtained by fraud. However those proceedings have since been discontinued and an order for costs and disbursements was made against the judgment debtor in the sum of $4,488 including disbursements.

[3] The judgment debtor has now turned his sights back to the Employment Court and is seeking an order in that Court for a re-hearing of the original proceeding in which the costs order was made. I assume that the rehearing application is based upon the same allegations of fraud which Mr O’Hagan raised before me.

[4] The judgment creditor now invites the Court to re-visit the halt application which I made in February of this year. Mr Braun for the judgment creditor submitted that continuation of the halt order ought to be made conditional upon payment of the costs which the judgment creditor obtained an order for in the High Court proceedings. There was, he submitted, no possible argument that the judgment debtor owed that money.

[5] Mr O’Hagan did not dispute the making of the costs order in the High Court. His essential position was that while he had equity in property he did not have cash which would enable him to pay the costs order and were he to be required to pay the costs order it would be necessary for him to arrange a finance facility which would bring with it additional expense. He did not wish to have to take this course.

[6] In my view there is jurisdiction to impose a requirement on a halt order so that it is conditional on payment of additional debts that have accrued.¹ While the Court is sensitive to the interests of the judgment debtor and concerned to ensure that he has a reasonable opportunity to re-litigate the original costs order which brings him before the Court, there has to be a balance between his rights to do so and the right of the judgment creditor to be able to recover undisputed costs orders of the

kind that are in issue here. For those reasons in my view it is appropriate that the order which the judgment creditor seeks ought to be made. The order of the Court is that the judgment debtor is to pay the amount of $4,488 to the judgment creditor within 28 days, failing which the Court will review the halt application if an

_{application is made to that effect by the judgment creditor.}

J P Doogue

_{Associate Judge}

¹ Section 38(2).