Simpson v Giddings

[2017] NZHC 2560

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2012-409-002167 [2017] NZHC 2560

BETWEEN

RICHARD GRANT SIMPSON, TREVOR

FRANCIS THORNTON AND GRAEME CARSON MCGLINN (AS STATUTORY MANAGERS OF THE TE TUA CHARITABLE TRUST) (IN STAT MAN) Judgment Creditors

AND

NICOLA LOUISE GIDDINGS Judgment Debtor

(Determined on the papers)
Appearances:	K L Maclean for Judgment Creditors No appearance for Judgment Debtor
Judgment:	19 October 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [leave to issue enforcement process]

Application for leave

[1]      The applicants, Robert Arnold Linton and Andrew James Morris apply for leave pursuant to r 17.9 High Court rules to issue an enforcement process.

Background

[2]      The judgment creditors,  as they appear in  the heading of this judgment, obtained judgment against the judgment debtor on 1 February 2013 in the sum of

$471,537.80 (the judgment).

SIMPSON v GIDDINGS [2017] NZHC 2560 [19 October 2017]

[3]      The judgment creditors obtained the judgment in their capacity as statutory managers of the Te Tua Charitable Trust (the Trust).

[4]      On 17 September 2014, the judgment creditors by deed assigned their benefit under the judgment to Margaret Jean Hubbard as trustee of the Trust, with such assignment effective from 18 September 2014.

[5]      The trust ceased to be in statutory management on 18 September 2014,1 and

Mrs Hubbard became the sole trustee of the Trust.

[6]      On 23 August 2016 Mrs Hubbard as continuing trustee, in the exercise of her powers under the Deed of Trust relating to the Trust, appointed Robert Linton and Andrew Morris as trustees of the Trust.

[7]      Mrs Hubbard retired as trustee of the Trust on 7 August 2017.

The need for leave

[8]      Mr Linton deposes that the judgment debt remains owing to the Trust.   The trustees now wish to issue an enforcement process in order to recover the debt.

[9]      Pursuant to r 17.9(2)(c) the Court’s leave is required to issue an enforcement process if any change has taken place in the parties entitled or liable to enforcement under the judgment.

Discussion

[10]     Mr Linton and Mr Morris, as trustees of the Trust, are the persons now entitled (as judgment creditors) under the judgment.

[11]     The  granting  of  leave  to  issue  an  enforcement  process  is  a  matter  of discretion.2    The authorities afford little guidance as to the manner in which the

discretion is to be exercised.   Some guidance may be had in relation to very old

1      Corporations (Investigation and Management) Order No 2, 2014.

2      R Chesney v New Zealand Drycleaners and Dyers Ltd [1958] NZLR 599 (HC) at 601.

judgments,3 but it would require an unusual circumstance for the Court not to grant leave where, as here, the need  for leave arises  through  a circumstance such as devolution of interest.  Leave is appropriate in this case.

[12]     Counsel  has  not  identified  the  form  of  enforcement  action  which  the applicants intend to pursue.  The order the Court makes will therefore refer generally to “enforcement process” which has an inclusive definition under r 17.1 High Court Rules. As counsel has not addressed me on the scope of the concept of “enforcement process”  I  refrain  from  any  observation  as  to  whether  “enforcement  process” includes a bankruptcy proceeding, that issue being the subject of differing judicial

authority.4      It will be for counsel for the applicants to satisfy themselves that any

process  pursued  upon  the  basis  of  the  leave  here  granted  is  an  “enforcement process”.

Order

[13]     I order:

(a)      Robert Arnold Linton and Andrew James Morris as trustees of the Te Tua Charitable Trust are substituted as judgment creditors in place of Richard Grant Simpson, Trevor Francis Thornton and Graeme Carson McGlinn as statutory managers of the Te Tua Charitable Trust (in stat man); and

(b)the   (substituted)   judgment   creditors   have   leave   to   issue   an enforcement process in relation to the judgment debt established by the judgment dated 5 February 2013; and

(c)      the (substituted) judgment creditors shall, at the time of pursuing any enforcement process pursuant to this leave, cause to be served upon

the judgment debtor a copy of this judgment.

3      R Chesney v New Zealand Drycleaners and Dyers Ltd [1958] above n 2 at 601.

4      Re Riddiford: ex parte New Zealand Law Society HC Wellington CIV-2005-485-000879, 15

December 2005 at [16] – [18] and Jenkins v Jenkins HC Christchurch B236/99, 25 June 1999.

Heading of Court documents

[14]     For the avoidance of doubt, I record that on future documents filed in this proceeding  the  correct  heading  will  identify  the  judgment  creditors  as  now substituted and not the former judgment creditors.

Associate Judge Osborne

Solicitors:

Tavendale and Partners, Christchurch