Judge makes Barry Hart bankruptcy call today

ANZ has applied to bankrupt Mr Hart over an unpaid damages claim of $34,000, relating to the mortgagee sale of his family farms.

When the matter was called at Auckland High Court yesterday, Mr Hart applied to halt the proceeding until his appeal of ANZ’s mortgagee sale process is heard in the Court of Appeal in March.

Mr Hart's claim for a breach of mortgagee duty was dismissed by Associate Judge David Abbott last month.

But Mr Hart wants to introduce fresh evidence to the Court of Appeal to prove ANZ sold his properties in Waimauku for much less than they were worth.

His lawyer Jeremy Bioletti said that included an updated valuation fo the properties by commercial property consultancy Colliers and information about the land’s sub divisional potential.

Mr Bioletti said bankrupting Mr Hart would mean the ability to pursue the appeal would shift form Mr Hart to the Official Assignee.

“Which may in turn mean the appeal can’t be proceeded with,” Mr Bioletti said.

Associate Judge Hannah Sargisson made it clear ANZ had a prima facie right to adjudication over the unpaid damages claim.

However, she adjourned proceedings so she could think about whether she would grant Mr Hart the stay ahead of his appeal.

A decision was expected late today, however NBR ONLINE understands the matter will be recalled at Auckland High Court on Monday.

Associate Judge Sargisson said she would not grant Mr Hart an adjournment unless she was persuaded it would serve a real purpose.

She needed to see something of “substance” from Mr Bioletti to demonstrate Mr Hart’s claim was potent enough to extinguish his undisputed debt to the bank.

“I’m not minded to grant an adjournment that would be pointless."

“We would just be putting off the evil day.”

She noted Mr Hart had not filed any documents in opposition to the adjudication proceeding.

ANZ’s lawyer Laura O’Gorman opposed any adjournment of the bankruptcy application today.

The court had already found Mr Hart had adopted a “vexatious” approach to ANZ’s mortgagee sale process.

“This is yet another example. The time for the court to grant any indulgence to Mr Hart has, in my view, come to an end.”

At the end fo the day, there was an underlying debt to the bank of $34,000, which Mr Hard could not pay, Ms O’Gorman said.

His bankruptcy was inevitable at some point, she said.

“Regardless of the outcome of the appeal he is clearly insolvent and will still owe large amounts to the bank.”

Mr Hart has maneuvered the courts for months over ANZ’ mortgagee sale process – an attempt to recover his original debt to the bank of more than $30 million.

Just days earlier, Mr Hart was in the same court appealing a lawyer’s disciplinary tribunal decision to strike him off after he was found guilty of misconduct in grossly overcharging clients.

The outcome of his appeal against his striking-off will be known in February.

gbond@nbr.co.nz