Callan v Cassidy

[2019] NZHC 1653

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-271

[2019] NZHC 1653

BETWEEN

ALEXANDRINA DENISA CALIAN

Judgment Creditor

AND

DARRIN HUGH CASSIDY

Judgment Debtor

Hearing:	16 July 2019
Appearances:	K Smith and J Greally for judgment creditor Judgment debtor in person
Judgment:	16 July 2019

REASONS FOR JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This is a standard proceeding under the Insolvency Act 2006 which the judgment creditor, Mrs Calian, commenced by serving a bankruptcy notice on the judgment debtor, Mr Cassidy. The bankruptcy notice was dated 14 May 2019 and was served shortly after that date.

[2]    Mr Cassidy responded by filing an interlocutory application dated 21 May 2019 for an order setting aside the bankruptcy notice supported by an affidavit sworn by him.

[3]    Mrs Calian filed a notice of opposition dated 13 June 2019 supported by an affidavit sworn by her.

[4]    Mr Cassidy’s application came on for hearing in the Wellington commercial list today.

CALIAN v CASSIDY [2019] NZHC 1653 [16 July 2019]

[5]    Having heard from both Mr Smith and Mr Cassidy, I dismissed Mr Cassidy’s application and indicated that I would give brief reasons in writing. I now do so.

[6]Mr Cassidy’s application states the grounds as being:

That the judgment debtor has a counterclaim set-off and cross-demand against the judgment creditor that is sufficient to cover the amounts specified and costs.

[7]    The bankruptcy notice is based on a  judgment  of the  Family Court dated  28 June 2018 ordering that Mr Cassidy pay to Mrs Calian costs and disbursements in the total sum of $25,050. This order was apparently made at the conclusion of proceedings in that Court concerning the couple’s children. It is unnecessary and would be inappropriate to go into further detail here.

[8]    It is quite clear from Mr Cassidy’s supporting affidavit that he has a range of concerns about the proceeding in the Family Court, but there is nothing in his affidavit, or in anything that he said to me in the course of the hearing, which establishes that he has a “… counterclaim, set-off and cross-demand against [Mrs Calian] …”.

[9]    On that basis alone I would have been prepared to dismiss Mr Cassidy’s application.

[10]   However, in the course of his submissions, Mr Cassidy informed the Court that he had recently applied to be adjudicated bankrupt.

[11]   In those circumstances, I had no hesitation in dismissing his application for an order setting aside the bankruptcy notice in this proceeding.

[12]   I adjourn this proceeding to the next Wellington commercial list on 13 August 2019. Its status will of course depend upon whether Mr Cassidy is bankrupt. If not, then Mrs Calian may proceed with her application. If so, the proceeding can be withdrawn.

[13]   In the circumstances, I grant costs in connection with the proceedings to date in favour of Mrs Calian on a 2B basis together with such disbursements as may be fixed by the Registrar.

Associate Judge Johnston

Solicitors:
Peter C Gilbert, Wellington for the judgment creditor