Il Forno Limited v Kleine [2022] NZHC 1203 (26 May 2022)

Last Updated: 22 June 2022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000275 [2022] NZHC 1203

IN THE MATTER OF	The bankruptcy of DOUGLAS JAMES KLEINE
BETWEEN	IL FORNO LIMITED Judgment Creditor
AND	DOUGLAS JAMES KLEINE Defendant

Hearing:	26 May 2022
Appearances:	M J W Lenihan for Judgment Creditor Judgment Debtor in Person
Judgment:	26 May 2022

ORAL JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

IL FORNO LTD v KLEINE [2022] NZHC 1203 [26 May 2022]

• [1] These are bankruptcy proceedings. The judgment debtor, Mr Kleine, seeks to file a Notice of Opposition out of time. He has also filed an affidavit in support of the opposition; it is currently unsworn. I accept he has had difficulties because of COVID and other circumstances with having it sworn.

• [2] I find that there is no proper basis to allow the opposition to be filed out of time. There is no valid explanation for the delay in the filing of the Notice of Opposition. Mr Kleine has been representing himself for some considerable time now in a great deal of litigation. He well understands the importance of timelines. He was served with the bankruptcy proceedings on 25 April 2022 and I appreciate that there are difficulties, but the explanation put forward is, in my view, not valid.

• [3] More importantly, I find that there is no plausible or credible defence to these proceedings. As Mr Lenihan points out, there have been multiple attempts by Mr Kleine to re-litigate matters at issue between the parties. There are no outstanding appeals despite attempts to appeal to the Court of Appeal. There is no stay of the underlying judgment debt, and as Mr Lenihan submitted, to allow these matters to continue will simply result in further unnecessary costs. It is incumbent on Mr Kleine to establish some plausible basis for a defence and I find that he has failed to do so.

• [4] Accordingly, the application to file the Notice of Opposition out of time is dismissed. This means, of course, there is currently no live defence to the bankruptcy adjudication application.

• [5] I acknowledge that in the circumstances an order for bankruptcy will be very significant for Mr Kleine.

• [6] Mr Kleine has previously practiced as an accountant, although he tells me today he is not currently a chartered accountant.

• [7] This is a first appearance. I am inclined to give Mr Kleine one final opportunity to make payment or to take advice or to take whatever steps he might do to stave off bankruptcy if that is what he wishes to do. But it will be a final opportunity and the

matter will come back before me, and absent payment of the debt or other satisfactory agreed arrangements, it is highly likely that an order for bankruptcy will be made.

• [8] Mr Kleine has indicated that he wishes to take advantage of that opportunity.

• [9] Accordingly, the proceedings are adjourned until the Bankruptcy List before me on 30 June 2022 at 10.45 am.

Associate Judge P J Andrew