Wholesale Cars Direct (4 x 4) Limited v Smyth [2018] NZHC 1166 (23 May 2018)

Last Updated: 6 June 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-1032 [2018] NZHC 1166

UNDER	the Insolvency Act 2006
IN THE MATTER	of the bankruptcy of Kelvin Smyth
BETWEEN	WHOLESALE CARS DIRECT (4 x 4) LIMITED Applicant
AND	KELVIN SMYTH Respondent

Hearing:	22 May 2018
Appearances:	M Belesky for applicant E Cox for respondent
Judgment:	23 May 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] On or shortly after 17 January 2018 the respondent served a bankruptcy notice on the applicant. This was based on a judgment originally issued by the District Court at Wellington on 30 October 2017. The applicant of course had 10 working days within which to respond.

[2] On 1 February 2018 the applicant filed and served the application before me, that is to say an application for an order setting aside the bankruptcy notice.

[3] The basis for this application was that the applicant had applied or was intending to apply for an order setting aside the District Court judgment. It is unnecessary for me to outline the basis for that application. The application for an order setting aside the bankruptcy notice being wholly dependent on the applicant

WHOLESALE CARS DIRECT (4 x 4) LIMITED v SMYTH [2018] NZHC 1166 [22 May 2018]

being successful in having the District Court judgment set aside, the parties have been forced to wait for the District Court to issue judgment. Judge Tompkins issued a judgment dated 7 May 2018. His Honour refused to set aside the original judgment dated 30 October 2017 but entered judgment for a lesser amount, reducing the principal amount of the judgment to $8,353.

[4] The question now is how this Court should deal with the application before it.

[5] Having reviewed the file and had the benefit of submissions from Mr Cox and Mr Belesky, I am satisfied that the plaintiff is entitled to an order dismissing this application. Equally, however, it seems to me to be appropriate to amend the bankruptcy notice so that it aligns with the District Court judgment upon which it is based.

[6] During the course of the hearing I enquired whether Wholesale Cars Direct was prepared to agree to extend the time during which Mr Smyth will now have to comply with the amended bankruptcy notice. As Mr Cox said to me, there is no need for a formal extension because whilst there may only be a matter of days remaining before the bankruptcy notice period expires, the reality is that Wholesale Cars Direct will not be able to commence proceedings for Mr Smyth’s bankruptcy and get those before the Court for some weeks. That should give Mr Smyth ample time to pay the debt or make other arrangements with Wholesale Cars Direct.

[7] Accordingly, I dismiss Mr Smyth’s application, and order that the Bankruptcy Notice be reduced to $8,028 (which takes into account payments totalling $325) plus costs of $796.



Associate Judge Johnston

Solicitors:

Buckett Law, Wellington for applicant Gibson Sheat, Wellington for respondent