R v R
| Jurisdiction | New Zealand |
| Judge | Smith |
| Judgment Date | 04 September 2019 |
| Neutral Citation | [2019] NZHC 2198 |
| Court | High Court |
| Docket Number | CIV-2018-404-2683 |
| Date | 04 September 2019 |
UNDER the Insolvency Act 2006
IN THE MATTER of the bankruptcy of R
Judge Smith
CIV-2018-404-2683
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
Family, Insolvency — application to set aside bankruptcy notice — counterclaim set-off or cross demand. — judgment entered against applicant under the Property (Relationships) act 1976 — whether applicant could claim costs of caring for the parties son who had special needs — Insolvency Act 2006
Mr R, the Judgment Debtor in person
Mrs M Pollak and Mrs P Grant for the Judgment Creditor
This judgment was delivered by me on 4 September 2019 at 10.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
On 21 September 2016 the judgment creditor (Ms R) obtained a judgment against the judgment debtor (Mr R) in the Family Court at Waitakere (the judgment). The judgment required Mr R to make payments to Ms R under the Property (Relationships) Act 1976 (the PRA), totalling $37,061.79.
Mr R did not pay the $37,061.79, and on 6 December 2018 Ms R issued a bankruptcy notice for that sum. Mr R now applies to set aside the bankruptcy notice. The application is opposed by Ms R.
A fixture was made to hear the application on 9 May 2019. Mr R applied for an adjournment of the fixture, and I heard from counsel and Mr R on the adjournment application on 6 May 2019. I refused the adjournment application, and directed Mr R to file any reply affidavits and written submissions by 5.00 pm on 8 May 2019.
In the event, Mr R did not get his submissions filed and served by that date. However, I permitted him to make oral submissions at the hearing on 9 May 2019. Ms Pollak made oral submissions in reply.
Neither party produced in evidence a copy of the judgment (given orally by Judge Rogers on 21 September 2016), although Mr R had referred to parts of it in his affidavit. A copy of the judgment has since been provided, and I have taken it into account in the judgment that follows.
I now give judgment on Mr R's application to set aside the bankruptcy notice.
Mr R's application is brief. It states:
… Herewith is an Application to Set Aside a Bankruptcy Notice and to file a Counterclaim Set-Off or Cross Demand against the Judgment Creditor that exceeds the amount claimed by the Judgment Creditor; and that I could not put forward in the action or proceeding in which the Judgment was obtained.
In support, Mr R filed an affidavit sworn on 21 January 2019.
Mr R had been represented by counsel in the Family Court proceeding, but his counsel was appointed to the bench. Mr R filed a notice in the Family Court dated 15 June 2016, stating that he would thenceforth be representing himself, and that his address for service would be “[a stated number] Maraetai Coast Road, Clevedon 2582”. Mr R's notice said that documents for service on him could be left at that address, or transmitted to him by email to a stated email address.
Mr R was not present at the 21 September 2016 Family Court hearing, and his defence was struck out by Judge Rogers due to his failure to attend. Mr R said that a fixture notice dated 9 June 2016 had not been sent to him at the correct address, and he did not receive notice of the fixture (whether in hard copy or by email).
On 20 September 2016 Mr R had sent an email to Ms R about her collecting certain agreed chattels the following day. He said he was then unaware of the Court hearing scheduled for the following day.
Mr R said in his 20 September 2016 email:
Aa Carriers have availability to pick up these items tomorrow between 10 and 12. I have just spoken with Jordan at AA Carriers. Please confirm today, by 4pm, that you will have these items, that you wanted, collected tomorrow. I do not have the capacity to store them. I have arranged this for you. We can then confirm the following day for our selection of the balance of the chattels.
Seven minutes later, Ms R replied by email: “[M], once I have had a chance to consider the contents of your email I will come back to you”.
At 6.00 pm on 21 September 2016 Mr R sent an email to Ms R noting that she had not contacted him that day, and that no carrier had contacted him regarding the collection of the items she wanted. Mr R said that he waited around for many many hours in case Ms R's carrier arrived, but the carrier did not come and he heard nothing from Ms R.
Ms R responded approximately 2 hours later, saying “[M], given your absence today, it is probably best to wait until you receive a copy of the final order before things are progressed”.
The following day Mr R queried the reference to his “absence”, saying “What absence? No carrier arrived — you have not collected your items …”. Ms R replied the next day: “Absence from Court!”
Mr R contended that Ms R had figured out on 20 September 2016 that he was unaware of the hearing scheduled for the following day, but chose not to tell him about it.
Mr R contacted the Case Management Team, Manukau, on 23 September 2016, and asked about any notices or orders they had sent out to him regarding any hearings. He produced a copy of an email from the case management team at Manukau dated 23 September 2016, in which the Court registry officer said:
Thank you for your email. Please find attached documentation from July 2016 that was returned to the Court.
The attachment was a letter from the Manukau Family Court dated 19 July 2016, advising Mr R of a hearing between the parties in a separate matter in that Court scheduled for 26 October 2016.
Mr R pointed out that his address as shown on the 19 July 2016 fixture notice was incorrect — Maraetai Coast Road was spelt “Maraeti” Coast Road, and there was no post code, correct or incorrect.
Mr R said that he eventually obtained a copy of the fixture notice for the hearing under the PRA that had been held on 21 September 2019. He produced a copy. The notice was addressed to him at the correct street number, but to “Maraeti Coast Road, Maraeti, New Zealand”. Mr R said that his address was in Clevedon, not “Maraeti”.
Mr R set out particulars of the claims he says he has against Ms R that he could not present in the Family Court hearing.
The first is a claim for $8,216,683.53 representing the estimated lifetime cost of care of the parties' 8 year old son. Mr R said that the parties' son suffers from foetal alcohol spectrum disorder (FASD), which has resulted in significant disabilities. Mr R attributed this to the pre-natal and post-natal alcohol consumption of Ms R. He produced a report dated 14 February 2018 from Dr Mark Sinclair, a consultant clinical psychologist, confirming the evidence for pre-natal alcohol exposure. However, the letter notes that “it is unclear whether this was at a sufficient level to be associated with behavioural or neurodevelopmental effects and other diagnoses such as genetic/chromosomal cannot be completely excluded”.
Mr R referred to “a concerted campaign” by Ms R for over 6 years against any diagnosis of FASD.
Mr R said that as a consequence of his son's FASD he has had to give up working. Since 2012 he has directly lost income of $40,000 — $80,000 per year. He said that he will continue to suffer that loss for the rest of his son's life. He put a figure of $1.2 million — $2.4 million on these alleged losses. In addition, he said that he had incurred costs since 2012 for his son, for therapy, tutoring, and accommodation in a therapeutic environment, totalling $15,000 — $17,000 per year. These costs would continue for the next 30 years.
The parties' son does receive funding from the Ministry of Education at the rate of $50,000 per annum, but Mr R said that when his son leaves school in about 8 years' time all his therapy costs will fall on Mr R. Mr R said that his son wishes to live with him after he turns 16. He estimated costs from then at approximately $440,000.
Mr R also claims for “loss of enjoyment of life”, arising from the fact that he will have to care for his son on a 24 hour basis. He claims a total of $1,200,000 for this item.
In addition, Mr R made various challenges to the judgment.
First he claimed that debts totalling $8,275.27 ordered to be paid by him as his “sole and separate debts” were in fact relationship debts, and that Ms R had acknowledged that that was the position before the hearing. He said that he was prevented from putting that argument to the Court when he was not notified of the 21 September 2016 hearing. He contended that the $8,275.27 should be offset against an amount of $8,729.79 that he was ordered to pay to Ms R in respect of a (relationship) debt of $15,000 plus interest owed to Ms R's brother. With that offset, the amount payable by him to Ms R in respect of the debts, would be reduced to $454.52.
Next, Mr R referred to a tenancy bond of $1,260 to which Ms R was entitled, going back to a tenancy agreement entered into in 2009. That tenancy bond was not allowed for in the judgment, and Mr R considered that it was relationship property that should be offset against the balance of the money due from him to Ms R in respect of the debts (calculated by Mr R at $454.52). That would produce a debt of $806.57 owing by Ms R to Mr R in respect of the debts and the tenancy bond.
Mr R also claimed that chattels in his possession were overvalued in the judgment.
He attached screenshots from Trade Me or a similar site, showing the “latest selling prices of most of these items”. The screenshot figures were said to show the actual values of the items. Mr R said that he had listed all these chattels online, with a reserve price at Ms R's valuation and a starting price of 10 per cent of...
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