IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2016-485-428 [2016] NZHC 3204 IN THE MATTER of the Insolvency Act 2006 AND IN THE MATTER BETWEEN AND of the Bankruptcy of Anthony Harry De Vries ANTHONY HARRY DE VRIES Applicant BARTERCARD EXCHANGE LIMITED Respondent Hearing: 21 October 2016 Appearances: A H de Vries in person M Anderson for the Respondent Judgment: 30 November 2016 JUDGMENT OF ASSOCIATE JUDGE SMITH Introduction [1] Mr de Vries applies to set aside a bankruptcy notice served on him by the respondent (Bartercard). This is the second bankruptcy notice which Bartercard has served on Mr de Vries. It follows a judgment that I gave on 15 April 2016 in which I refused an application by Bartercard to adjudicate Mr de Vries bankrupt, on the basis that the amount it had claimed in its first bankruptcy notice was overstated. 1 I made it clear in that judgment that nothing prevented Bartercard from issuing another bankruptcy notice. 1 Re Bartercard Exchange Ltd ex parte de Vries [2016] NZHC 703. DE VRIES v BARTERCARD EXCHANGE LIMITED [2016] NZHC 3204 [30 November 2016]
[2] Bartercard served its second bankruptcy notice on Mr de Vries on 5 July 2016. The amount claimed in this second notice ( the bankruptcy notice ) is $140,644.81. It is issued in respect of a judgment Bartercard obtained against Mr de Vries in the Hutt Valley District Court on 22 September 2011 in proceeding CIV-2011-032-396 (the principal judgment), for $179,630.72. [3] The District Court Deputy Registrar s certificate shows that subsequent costs of $146.70 were awarded to Bartercard on the judgment, bringing the total of the judgment plus subsequent costs to $179,777.42. [4] In the bankruptcy notice Bartercard has allowed a credit of $38,985.91 for payments made by Mr de Vries, reducing the balance claimed in the bankruptcy notice to $140,644.91. Bartercard also claims $796.00 for its costs and disbursements associated with the issue of the bankruptcy notice. [5] Mr de Vries filed his application to set aside the bankruptcy notice on 19 July 2016. Background [6] The history of the matter is set out in some detail in my judgment given on 15 April 2016. 2 There is no need to give more than a fairly broad summary of the history in this judgment. [7] Bartercard obtained two judgments against Mr de Vries in the District Court at Hutt Valley in September 2011. One of them was the principal judgment. The second was for the sum of $170,308.56. [8] The principal judgment related to obligations incurred by Mr de Vries as guarantor of a company called Zoom Zoom Properties Ltd, which was put into liquidation on 12 July 2011. The second judgment related to Mr de Vries indebtedness as guarantor of a related company, Zoom Zoom Ltd, which was also put into liquidation in July 2011. 2 Re Bartercard, above n 1, at [1] to [14].
[9] Mr de Vries made a number of payments on account of the two judgment debts. Mr Rogers, a co-guarantor liable to Bartercard on the same debts, also made some payments. [10] In my previous judgment I determined that the amount claimed in the first bankruptcy notice, namely $179,777.42, was overstated, and that there was insufficient evidence to determine the exact amount of the overstatement. 3 The bankruptcy notice [11] The bankruptcy notice included the following: (1) Take notice that within 10 working days, after you are served with this notice (excluding the day of service): (a) (b) (c) You must pay to [Bartercard] $140,644.81 (the judgment sum of $179,630.72 less payments made to date of $38,985.91) This is the amount that the judgment creditor claims is due (or remains unpaid) on a final judgment or final order, on which execution has not been stayed, that the judgment creditor obtained against you in the Hutt Valley District Court on 22 September 2011; or You must secure or enter into a formal agreement with [Bartercard] or, alternatively, obtain the High Court s approval of terms of payment; or You must satisfy the High Court that you have a counterclaim, set-off, or cross-demand against the judgment creditor- (i) (ii) That equals or exceeds the amount claimed by the judgment creditor; and That you could not put forward in the action or proceeding in which the judgment or order was obtained. (2) [Bartercard] also claims costs against you of $796 District Court applications [12] Mr de Vries has now filed various interlocutory applications in the District Court, including an application to set aside the principal judgment. On 19 July 2016 he applied for either a stay of execution or an order setting aside the 2011 judgments. 3 Re Bartercard, above n 1 at [73].
On 21 July 2016, Judge Tompkins granted a stay of execution until 22 August 2016 or later determination of the application [which Mr de Vries had filed in this Court] to set aside bankruptcy notice. [13] On 10 August Judge Tompkins confirmed that the stay previously granted was not to extend beyond 22 August 2016, or later determination by the High Court of the application to set aside the bankruptcy notice. On 1 September 2016 the Judge ordered: stay is not to extend beyond 22/8/16 in the District Court. [14] Mr de Vries filed a second interlocutory application in the District Court on 5 September 2016. In this application, he sought an order setting aside the principal judgment and an order for a rehearing of the proceedings in which the two judgments were entered. The grounds included Mr de Vries being unable to attend the hearing at the time the judgments were entered, and his alleged failure to understand the full implications of the case. [15] Mr de Vries application to set aside the principal judgment has been set down for hearing in the District Court on 5 December 2016. [16] At a call of Mr de Vries application to set aside the bankruptcy notice on 6 September 2016, Associate Judge Christiansen noted that Mr de Vries had applied to the District Court to set aside the principal judgment. His Honour saw no reason why Mr de Vries application to this Court to set aside the bankruptcy notice should not proceed to a hearing. The Associate Judge dismissed an oral application made by Mr de Vries for costs (apparently on the basis that Bartercard s opposition to his application to set aside the bankruptcy notice had no hope of success). The application to set aside The law [17] Applications to set aside bankruptcy notices are governed by s 17 of the Insolvency Act 2006 (the Act). That section materially provides:
17 Failure to comply with bankruptcy notice (1) A debtor commits an act of bankruptcy if (a) (b) (c) (d) a creditor has obtained a final judgment or a final order against the debtor for any amount; and execution of the judgment or order has not been halted by a court; and the debtor has been served with a bankruptcy notice; and the debtor has not [ ] (i) complied with the requirements of the notice; or (ii) satisfied the court that he or she has a cross claim against the creditor (7) In subsection 1(d)(ii), cross claim means a counterclaim, setoff, or cross demand that (a) (b) is equal to, or greater than, the judgment debt or the amount that the debtor has been ordered to pay; and the debtor could not use as a defence in the action or proceedings in which the judgment or the order, as the case may be, was obtained. Mr De Vries evidence and submissions [18] Mr de Vries case can be summarised as follows: (1) The whole debt claim is in dispute, and Bartercard had no right to even obtain the principal judgment. (2) Mr de Vries was unaware of his rights, or the opportunity he had to defend the case, at the time the 2011 judgments were entered. (3) The amounts claimed should not have been converted to New Zealand dollars (instead of Bartercard trade dollars). (4) Bartercard deliberately denied Mr de Vries the chance to arrange for the entity that secured the relevant line of credit to repay the debt in
kind, using products offered by Mr de Vries or his company Anco Print Ltd on the Bartercard trading portal. (5) There was no time limit set for repayment, or specific repayment schedule agreed to by all parties. Bartercard trade dollars debts do not have to be settled within any particular time. Furthermore, Mr de Vries contacted Bartercard to ascertain the actual amount owed and how best to move forward, but there was no response. (6) Bartercard has forgiven the debt owed by the co-guarantor Mr Rogers, but has treated Mr de Vries unfairly by not forgiving Mr de Vries share of the debt. In this respect, Bartercard s actions have prejudiced Mr de Vries. (7) Mr de Vries can prove if required there is a counterclaim. [19] In addition, Mr de Vries raised an issue regarding the authority of Bartercard s solicitors and counsel to act in this proceeding. I rejected his submissions on that point in a ruling given at the hearing. 4 Bartercard s evidence and submissions [20] Bartercard opposes the application. It says Mr de Vries has not made out any grounds upon which the bankruptcy notice should be set aside. [21] Mr Chetty, a credit controller employed by Bartercard, filed an affidavit in support of Bartercard s opposition. Mr Chetty says that the bankruptcy notice gives all possible credit in respect of the payments [Bartercard has], in fact, received of $38,985.91 since the principal judgment was entered in September 2011. He says that the benefit of any doubt has been given to Mr de Vries. No interest has been charged. [22] Mr Chetty attached to his affidavit a schedule setting out all payments received on account of the principal judgment (ie payments made in reduction of the 4 Minute of Associate Judge Smith HC Wellington CIV-2016-485-428, 21 October 2016.
Zoom Zoom Properties Ltd indebtedness by both Mr de Vries and Mr Rogers). The total amount paid is shown at $38,985.91. Although Bartercard says that it was not obliged to accept payment in Bartercard trade dollars, it did in fact elect to do so it received a total of $31,535.91 in Bartercard trade dollars between January 2011 and September 2013. The balance of the $38,985.91 was comprised of cash payments made by Mr de Vries and Mr Rogers between 19 April 2013 and 11 November 2015. [23] Bartercard has given Mr de Vries credit for some payments made before the principal judgment was entered against him on 22 September 2011. Mr Chetty acknowledges that all or some of those payments may have already been credited to Mr de Vries in the principal judgment, but Bartercard has given Mr de Vries credit for these payments to remove any argument that the amount in the bankruptcy notice has (again) been overstated. [24] While Mr de Vries has criticised Bartercard s apparent inability to provide precise details of the repayments made by him and/or Mr Rogers, he has not given evidence of any payment made by either Mr Rogers or himself which is not included in Mr Chetty s schedule. [25] Mr Chetty deposes that the liability of Mr de Vries and Mr Rogers as coguarantors of the Zoom Zoom Properties Ltd debt was joint and several. Again, that has not been disputed by Mr de Vries. [26] Mr Chetty and Mr de Vries both produced copies of a letter sent by Bartercard to Zoom Zoom Properties Ltd, Mr de Vries, and Mr Rogers, on 12 April 2011. [27] In the letter, Bartercard indicated that it would be willing to accept the following payment arrangement from Mr Rogers and Mr de Vries: each to make minimum monthly payments of $1,000 (trade) and $250, commencing no later than 30 April 2011. Those payment levels would be subject to review on 31 October 2011. The letter advised that failure to comply with the arrangement by a party might result in cancellation, and commencement of legal action by
Bartercard, and that nothing in the agreement would limit in any way Bartercard s legal rights of remedy. The letter then stated: No release of security or division of liability will be granted at this time but may be revisited in future reviews. [28] It appears that Mr Rogers accepted this arrangement and began making payments. Mr de Vries did not. Instead, he crossed out the arrangement insofar as it related to him, and wrote on the letter: Payments via cash or trade if, and when possible. [29] That was not acceptable to Bartercard. It wrote to Mr de Vries on 26 May 2011 advising that his continual delay in settling the account was unacceptable, and that it was not prepared to hold matters any longer. It advised that if Mr de Vries did not make payment in full within 7 days, legal action for recovery would follow without further notice. When Mr de Vries did not make payment, Bartercard commenced the proceedings which resulted in the judgments entered in September 2011. [30] Mr Chetty says that, although Mr de Vries continued to make payments from time to time, 5 no agreement was ever reached with him for instalment payments. Mr de Vires has made two payments since Bartercard issued the first bankruptcy notice in 2015. The first was $350 on 12 October 2015 and the second $350 on 11 November 2015. [31] Mr Chetty says that Mr Rogers continued to make payments under the April 2011 arrangement until October 2015. On 19 October 2015 Mr Rogers advised that he could make no further payments, and was facing imminent bankruptcy. [32] In fact Mr Rogers did not then go into bankruptcy. Mr Chetty s evidence was that he had then (as of May 2016) given instructions for steps to be taken by Bartercard to have Mr Rogers adjudicated bankrupt. 5 As described in my judgment given on 15 April 2016, above footnote 1, at [12] to [13].
[33] Mr Chetty denies Mr de Vries contention that Bartercard has forgiven Mr Rogers, and thus prejudiced Mr de Vries by not affording him equal treatment. Preliminary issues [34] There are two preliminary issues, and I think both can be dealt with quickly. The first concerns the effect of the stay of execution order made by Judge Tompkins in the District Court. [35] Judge Tompkins granted a stay of execution until 22 August 2016 or later determination of the application to set aside bankruptcy notice. The most recent order on 1 September 2016 clarified that the stay is not to extend beyond 22 August 2016 in the District Court. Mr Anderson submitted at the hearing that, as that date had passed, the stay of execution was no longer in place. [36] I conclude that the stay orders made in the District Court do not affect this Court s ability to determine Mr de Vries application to set aside the bankruptcy notice. First, no stay of execution was in place when Bartercard issued the bankruptcy notice on 17 June 2016 (or when it was served on Mr de Vries on 5 July 2016), and Bartercard was clearly entitled to issue the bankruptcy notice. Secondly, the wording of Judge Tompkins orders, and Associate Judge Christiansen s interpretation of them in this Court on 6 September 2016, make it clear that neither Judge considered that the stay order in the District Court should interfere with the hearing and determination of Mr de Vries application in this Court to set aside the bankruptcy notice. Thirdly, an application to set aside a bankruptcy notice is not in any event an execution process which could be affected by the order for a stay of execution made in the District Court. [37] The second preliminary matter I should mention relates to the wording of the application filed by Mr de Vries in this court on 19 July 2016. It is described as an application to set aside Bankruptcy Application /Stay, and an application for a set off based on an application in the District Court filed on the 19 th July 2016 for a stay of execution and a further possible application for a rehearing Mr de Vries subsequently did file an application in the District Court for orders setting aside the September 2011 judgments and granting a rehearing in that court.
[38] The hearing in this court proceeded on the basis that the matter to be heard was an application by Mr de Vries to set aside the bankruptcy notice. The District Court was already dealing with the question of whether execution of either or both of the District Court judgments should be stayed, and it had already made certain orders in that regard. [39] In circumstances where Mr De Vries has asked the District Court to decide the issue of stay or no stay, it is appropriate that the issue should remain to be resolved by the District Court. If and to the extent there may remain any application by Mr de Vries for an order staying execution on the District Court judgments, that application is refused. Discussion and findings [40] The substantive issues may be summarised as follows: (1) Does Mr de Vries have a cross-claim, as defined in s 17(7) of the Act? (2) Is there any evidence of abuse of process on the part of Bartercard, sufficient to justify the setting aside of the bankruptcy notice? Issue (1) Does Mr de Vries have a cross-claim, as defined in s 17(7) of the Act? [41] The question is whether Mr de Vries has a cross-claim that exceeds the amount claimed in the bankruptcy notice, which he could not have raised in the District Court proceeding in which the principal judgment was entered (emphasis added). The principal judgment [42] I am not here concerned with the question of whether or not the principal judgment should have been entered back in September 2011. [43] Nor is it the role of this Court to predict the outcome of the application which Mr de Vries has now belatedly filed in the District Court to have the principal judgment set aside. In the present application, Bartercard is entitled to rely on the
principal judgment as entered, until such time as it is set aside; the only question on issue (1) is whether Mr de Vries has provided evidence of a cross-clam he could not have raised in the District Court back in 2011. [44] I address below each of the points made by Mr de Vries in support of the application. Conversion into Bartercard dollars [45] Mr de Vries contends that, under their own rules of trade, Bartercard had no right to convert Bartercard dollars to cash. Bartercard dollars are not the same as cash. [46] There is no merit in this submission. The judgments against Mr de Vries, including the principal judgment, are in New Zealand currency, and Mr de Vries obligation was to satisfy the judgments in New Zealand dollars. Mr de Vries real complaint appears to be that Bartercard should not have been permitted to obtain its judgment in New Zealand dollars. The problem with that submission is that it is a complaint which could have been raised in the proceeding in which the principal judgment was entered. It cannot form the basis for a cross-claim under s 17 of the Act. Denied opportunity to pay back Bartercard [47] Mr de Vries alleges that Bartercard failed to account for numerous payments made in Bartercard trade dollars while awaiting the actual amounts owed. He also says that Bartercard refused to accept goods in exchange for the debt, even though the value of the goods he was prepared to provide outweighed the value of any debt he owed. He says that his company Anco Print Ltd would still have rights to repay dollars by building up credit (presumably in Bartercard trade dollars) if it was not blocked by Bartercard. [48] Mr Chetty s evidence for Bartercard is that all payments made in Bartercard trade dollars by both Mr de Vries and Mr Rogers have now been credited to the account. In respect of the principal judgment, $31,535.91 has been credited to the
Zoom Zoom Properties Ltd (in liquidation) account, on which Bartercard obtained the principal judgment, and Mr de Vries has failed to identify any payment made in trade dollars for which credit has not been given. [49] On the evidence, there is no basis for me to conclude that any payments made by Mr de Vries in Bartercard trade dollars have not been accounted for. [50] With respect to Mr de Vries offer to exchange for his debt goods to a value exceeding the amount of the debt, Bartercard was under no obligation to accept any such exchange after it obtained the principal judgment. The parties pre-existing rights and liabilities merged in the principal judgment once it was entered, and its effect was that Bartercard immediately became entitled to payment of the judgment in New Zealand dollars. Thereafter it was entirely a matter for Bartercard to decide whether or not it would accept anything other than New Zealand dollars in partial satisfaction of the principal judgment. Mr de Vries cannot complain if Bartercard elected not to. No time limits [51] Mr de Vries alleges that there was no time limit on Bartercard s debt. That is not correct. The principal judgment was payable immediately, and there is no evidence of Bartercard agreeing with Mr de Vries to defer the time for payment. There were certainly negotiations about Mr de Vries paying the debts over time, but there is no evidence that those negotiations resulted in any agreement being reached. [52] If and to the extent Mr de Vries concern under this head is that Bartercard s rules do not provide that debts expressed in Bartercard trade dollars must be settled within any particular time, that was clearly something Mr de Vries could have argued in the District Court in the proceeding in which the principal judgment was entered. Furthermore the rules for trading in Bartercard trade dollars could not have applied once judgment was entered. The judgment was entered in New Zealand dollars and it was payable in that currency immediately. There is no arguable cross-claim under this head.
Mr Rogers [53] Mr de Vries contends that Bartercard has forgiven the debt of his coguarantor, Mr Rogers, but has not afforded him the same treatment. In the adjudication proceeding which was the subject of my judgment given on 15 April 2016 Mr de Vries specifically alleged that Bartercard had entered into an agreement with Mr Rogers under which Mr Rogers was only obliged to pay 50 per cent of the debt. [54] Again, I see no arguable cross-claim based on Bartercard s dealings with Mr Rogers. First, Mr Chetty has now confirmed on oath that Mr Rogers debt has not been forgiven. While Bartercard did not act immediately against Mr Rogers when he gave notice of his inability to make further payments in an email he sent to Bartercard on 19 October 2015, Mr Chetty says that steps are now being taken to have Mr Rogers adjudicated bankrupt. Secondly, the evidence is that Mr de Vries and Mr Rogers were jointly and severally liable on their guarantees of the Zoom Zoom liabilities. That meant that Bartercard was free to pursue either guarantor for the full amount of the Zoom Zoom debts if it wished to do so (although if it did that credit would have to be given for payments received from the other debtor). The arrangement entered into with Mr Rogers in April 2011 does not appear to have altered Mr de Vries joint and several liability for the Zoom Zoom debts, 6 but even if it had, that would have been something Mr de Vries could have raised in the subsequent District Court proceeding in which Bartercard obtained the principal judgment. It is therefore incapable of providing the basis for a cross-claim under s 17(7)(b) of the Act. [55] Neither party has produced evidence of any agreement that demonstrates Mr de Vries has been treated prejudicially, such as might have given rise to an issue of abuse of process in the issue or prosecution of the bankruptcy notice. Mr de Vries submissions under this head accordingly provide no basis for setting aside the bankruptcy notice. 6 Nothing in the arrangement was to limit in any way Bartercard s legal rights of remedy, and the 12 April 2011 letter expressly stated that no release of security or division of liability would be granted.
Counterclaim [56] Any counterclaim against Bartercard would have to be for an amount equal to or greater than the judgment debt, and be one which the debtor could not use as a defence in the action or proceeding in which the judgment or order was obtained. 7 There is no evidence of any such counterclaim in this case, and it is not sufficient for Mr de Vries to refer in general terms to a counterclaim he intends to make in the District Court proceeding if the judgments are set aside and he is granted a rehearing in that Court. Issue (2) Abuse of process [57] The Court has an inherent jurisdiction to control the abuse of its process in bankruptcy proceedings. The grounds on which the jurisdiction may be exercised are: 8 (a) a procedural defect in the obtaining of the judgment on which the bankruptcy notice is based: and/or (b) the existence of arguable grounds of defence to the claim for which judgment was given that was not legally available at the time, or not factually available due to cogent circumstances. There must be good reasons to doubt the judgment on which the claim is based: 9 and/or (c) grounds of potential injustice (but not impugning the underlying judgment debt), requiring very special circumstances. 10 [58] In this case, I am not satisfied that there has been any abuse of process by Bartercard in the issue of the bankruptcy notice or in its opposition to Mr de Vries setting aside application. These judgments were obtained as long ago as September 2011, and Mr de Vries has taken almost five years to challenge them. There is no evidence of any relevant procedural defect in the entry of the principal 7 8 9 10 Insolvency Act 2006, s 17(7). Re Wise HC Auckland B227/95, 21 June 1995. Re Krukziener ex p Hanover Finance Ltd HC Auckland CIV-2007-404-2896, 12 August 2008. At [36].
judgment, and nothing which could qualify as very special circumstances which might create (or have created) a potential injustice. Any arguable defence Mr de Vries might have had was legally available to him in the proceeding in which the principal judgment was entered, and he has not provided any evidence of cogent circumstances which prevented him from raising in the District Court proceeding the defences he now wishes to raise. [59] The circumstances in this case appear to be not dissimilar in relevant respects to those with which the Court was concerned in Clark v UDC Finance Ltd, 11 where the High Court declined to set aside a bankruptcy notice which had been served on Mr Clark. Mr Clark wished to raise a counterclaim, but the Court found that if he had taken the elementary step of seeking further information or advice at the time he could have raised the counterclaim in the action in which judgment had been obtained against him by default. [60] As Tipping J noted in Hardie v Booth, 12 the inability of which [the forerunner of s 17(7)(b) of the Act] speaks is primarily a legal inability. Factual inability is also available but that requires some cogent circumstance. To take a looser view would be to frustrate [the statutory purpose] which is obviously designed to ensure that all issues between the parties both ways be tried at once and that a bankruptcy notice only be set aside if the debtor has a cross-claim which either legally or factually could not be set up in the same proceedings. [61] And in Philpott v Shangri-La Apartments Ltd 13 Ellis J observed that the policy implicit in the provisions of [the forerunner of s 17(7)(b) of the Act] is that the debtor should raise his claim at the earliest opportunity and that it should then be considered. The debtor cannot simply sit on his rights until a bankruptcy notice issues. [62] The general rule is that a judgment creditor is entitled to rely on a judgment it has obtained until it is set aside, whether by the Court in which the judgment was 11 12 13 Clark v UDC Finance Ltd [1985] 2 NZLR 636, at 640. Hardie v Booth [1992] 1 NZLR 356, at 362. Philpott v Shangri-La Apartments Ltd HC Wellington B 7/89, 10 July 1989.
entered or by the appropriate higher court on appeal. For the foregoing reasons I see no reason to adopt a different approach in this case. [63] Mr de Vries apparent belief that the bankruptcy notice somehow constitutes an admission by Bartercard that judgment was obtained for an incorrect amount does not alter that view. In fact, Bartercard has not made any such admission: it has simply taken the understandable decision to remove any possible argument that the amount claimed in the bankruptcy notice is overstated, by crediting Mr de Vries with all payments made since early 2011 (including some for which credit may already have been given in the principal judgment). Mr de Vries has not pointed to any payment made by him or Mr Rogers since the principal judgment was entered for which credit was not given in the amount claimed in the bankruptcy notice, and I am satisfied on the evidence that the amount in the bankruptcy notice has not been overstated. [64] In accordance with normal practice, the bankruptcy notice was issued on only one of the two judgments held by Bartercard (the principal judgment), and Mr de Vries has raised no credible argument that the amount owed by him on the principal judgment is less than the amount demanded in the bankruptcy notice. [65] I have carefully considered all of the numerous memoranda, affidavits and written submissions filed by Mr de Vries, and listened carefully to his oral submissions at the hearing. I see nothing in any of that material that might justify a finding of abuse of process on the part of Bartercard or its representatives, such as might justify setting aside the bankruptcy notice on the grounds of abuse of process. Nor do I see anything in any of that material which might amount to an arguable cross-claim under s 17 of the Act. [66] It is perhaps unfortunate that Mr de Vries appears to have misconceived the nature of an application to set aside a bankruptcy notice. Harking back to arguments directed to whether or not the principal judgment should have been entered was unlikely to be successful, at least in the absence of compelling reasons why those arguments could not have been raised back in 2011 in the District Court proceeding.
The arguments will now be for the District Court to consider on any rehearing of the proceeding in that Court. [67] For avoidance of any doubt, I record that the decision of this Court to decline to set aside the bankruptcy notice will not preclude Mr de Vries from pursuing his application in the District Court to set aside the judgments, although he will clearly need to prosecute that application with some urgency. The effect of his failure to comply with the bankruptcy notice (and the Court s present decision to decline to set aside the bankruptcy notice) is that Bartercard now has an available act of bankruptcy on which it is entitled to base an application for an adjudication order if it wishes to do so. Result [68] Mr de Vries application to set aside the bankruptcy notice is dismissed. [69] In the ordinary way, costs will follow the event. Mr de Vries is to pay Bartercard s costs, on a 2B basis, with disbursements as fixed by the Registrar. Solicitors: Thomas Dewar Sziranyi Letts, Lower Hutt for the respondent Associate Judge Smith