Jamieson v Official Assignee

JurisdictionNew Zealand
CourtHigh Court
JudgeBELL,Associate Judge
Judgment Date08 May 2012
Neutral Citation[2012] NZHC 949
Docket NumberCIV-2007-404-2139

[2012] NZHC 949

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Judges:

Associate Judge Bell

CIV-2007-404-2139

Under the Insolvency Act 2006

In The Matter Of the bankruptcy of KATHLEEN MARY JAMIESON

BETWEEN
Kathleen Mary Jamieson
Applicant
and
Official Assignee
Respondent
Appearances:

K M Jamieson in person

K M Waltelin for Official Assignee

N J Carter for Creditor, Haines House Removals Company Limited

Application for discharge from bankruptcy under s108 Insolvency Act 1967 (“IA”) (bankrupt may apply for discharge) — bankruptcy governed by 1967 Act — appellant resided in Vanuatu — respondent opposed on basis applicant had refused to supply information; had moved assets out of New Zealand and continued to operate a business in Vanuatu without informing Official Assignee — whether application should be refused under s110 IA (Court may grant or refuse discharge) — whether definition of property under s2 IA included overseas assets — bankrupt's duties under s60 IA (general duties) — whether operating overseas business breached s62 IA (prohibition of bankrupt entering business).

The issues were: whether the definition of property under s2 IA included overseas assets; whether operating an overseas business breached s62 IA (prohibition of bankrupt entering business); and whether J's discharge should be deferred when regarding the purposes of bankruptcy and her conduct.

Held: The purposes of bankruptcy included:

  • • administration for the bankrupt's estate for the interests of creditors;

  • • promoting accountability for their liabilities;

  • • protecting the community;

  • • punishment for misconduct; and

  • • freeing the debtor from liabilities to start afresh.

J had the means to pay the debt. She was recalcitrant rather than insolvent. J had deliberately misled the OA by not fully disclosing her assets disposed of before and during bankruptcy, specifically assets she had owned or controlled in NZ which were now held by a trust in Vanuatu.

On adjudication, a bankrupt was subject to a number of duties and disabilities which included the general duties under s60 IA (general duties of bankrupt) which included: giving a complete and accurate list of property and other information as required by the OA; disclosing to the OA any property which may be acquired before their discharge; supplying the OA with information regarding expenditure and deliver on demand any property that was divisible, among creditors.

The definition of property under s2 IA (interpretation — land, money, goods and every valuable thing… whether situated in NZ or elsewhere) included overseas assets. J had not given the OA a complete and accurate list of her property under s60(a) IA, nor had she completely disclosed property acquired by her before discharge which could be divisible among her creditors, in particular her earnings from the cruise business as required by s60(b) IA. J had done little to aid in the realisation of her property and the distribution of proceeds among her creditors.

Under s62 IA an undischarged bankrupt could not carry on or take part in the management of a business without the consent of the OA. The normal rule of interpretation was that provisions such as s62 IA did not apply outside NZ. Therefore, the provision had not been breached. However, J's conduct in moving to Vanuatu and setting up residence and business there was relevant. She had made it harder for the OA to administer her bankruptcy. She had kept assets out of NZ making it more difficult for them to be realised for the benefit of creditors. J had not been subject to the same restraints (as to carrying on business and incurring credit) as if she had stayed in NZ.

The OA no longer relied on the administration of the bankruptcy in the interests of creditors so that purpose of bankruptcy no longer required J's discharged be deferred. J's accountability for her debt to Haines had been met by her adjudication, and it did not require her bankruptcy to be prolonged. There was no evidence she would be a threat to the community at large if she was discharged. She did not appear to be a credit risk to others. The protection of the community did not require her discharge to be deferred. J's conduct before adjudication in refusing to pay the judgment debt to Haines went to accountability, but did not by itself trigger any need for her to be punished.

However J's conduct since adjudication was another matter. Her grudging and minimal co-operation with the OA; together with her limited disclosure of her affairs and provision of misleading information to the OA fell well below what was required of an undischarged bankrupt. In allowing a bankrupt an automatic discharge after three years (in the absence of objections), Parliament no doubt contemplated that the bankrupt would generally comply with the requirements of the IA. A bankrupt who deliberately flouted the IA's requirements was in a different class. Deliberate misconduct called for a deterrent response which was to refuse a discharge under s110 IA.

J's misconduct had only been directed at the OA and Haines. An aggravating feature was that she had avoided some of the effects of bankruptcy by taking up residence and business in Vanuatu. Ordinarily J's misconduct would warrant a further year's deferral, but an additional six months was added on for that aggravating factor. Accordingly J was entitled to a discharge on 7 March 2012. As that date had passed, her discharge took effect immediately. It was not appropriate to make any further orders under s110 IA. While J was discharged from bankruptcy, the OA remained free to continue administration of her estate under the IA.

Application granted. Order that J be discharged from bankruptcy.

RESERVED JUDGMENT OF ASSOCIATE JUDGE BELL

This judgment was delivered by me on … 8 May 2012 … at.. 4:00pm pursuant to Rule 11.5 of the High Court Rules.

………………

Registrar/Deputy Registrar

1

The question in this case is whether Ms Jamieson should be discharged from her bankruptcy. She was adjudicated bankrupt on 5 September 2007 on the petition of Haines House Removals Ltd. Her bankruptcy and the question of her discharge are governed by the Insolvency Act 1967: s 444(2) of the Insolvency Act 2006.

2

The Official Assignee lodged an objection to her discharge on 2 September 2010, almost on the eve of the third anniversary of her adjudication, when she would ordinarily have been automatically discharged under s 107(2) of the Insolvency Act. The Official Assignee's objection did not specify any grounds. Ms Jamieson filed an application for discharge under s 108 on 8 April 2011. The Official Assignee filed a notice of opposition on 28 April 2011, which included these grounds:

  • (a) Ms Jamieson had not co-operated with the Official Assignee's request for information about her affairs, including information and documents concerning various trusts and companies she is associated with;

  • (b) Ms Jamieson had not disclosed all her assets to the Official Assignee; and

  • (c) Ms Jamieson had failed to assist the Official Assignee to recover assets for the benefit of her creditors.

3

At the same time the Official Assignee filed for a public examination of Ms Jamieson under s 109(1). Under that provision the Official Assignee is required to arrange the public examination as soon as practicable after the expiration of three years of the adjudication.

4

There has been a de facto extension of Ms Jamieson's bankruptcy because of the time taken for Ms Jamieson's application for discharge to be heard and for this decision to be given.

5

The public examination took place on 6 October 2011. The Official Assignee's report under s 109(2) was not filed until 4 October 2011. The creditor, Haines House Removals Co Ltd, appeared but took a limited part in the hearing on that day. As the hearing developed, it turned out that the Official Assignee's position was limited to requiring Ms Jamieson to provide fuller information. If she did that, the Official Assignee would no longer oppose the discharge. I gave directions for the Official Assignee to request information from Ms Jamieson and for Ms Jamieson to provide it, and adjourned the matter. When the substantive hearing resumed on 18 November 2011, the creditor had filed its own notice of opposition under s 109(4) of the Insolvency Act. That allows a creditor who opposes a discharge on grounds other than those mentioned in the Assignee's report to give notice of his intended opposition and grounds. The creditor's notice gave these grounds:

  • (a) Ms Jamieson had deliberately misled the Official Assignee;

  • (b) Ms Jamieson had created and provided false fraudulent documents to the Official Assignee;

  • (c) Ms Jamieson had operated a business without disclosing this to the Official Assignee;

  • (d) Ms Jamieson had failed to disclose details of assets disposed of prior to or during the bankruptcy; and

  • (e) Ms Jamieson's failure to co-operate with the Official Assignee that has prevented the Official Assignee from realising the bankrupt's assets and making a distribution to the creditor.

6

I gave rulings allowing the creditor to file its own notice of opposition and for the public examination of Ms Jamieson to be continued. At the end of the hearing, the Official Assignee's position was that the Official Assignee no longer opposed Ms Jamieson's discharge from bankruptcy. The Official Assignee intended to continue the administration of Ms Jamieson's bankruptcy after the discharge. It had received some further information from Ms Jamieson which the Official Assignee could use in the administration. The Official Assignee did not want to obtain further information from Ms Jamieson. Consistent with his limited grounds of opposition, the Official Assignee considered that no useful purpose would be served by prolonging her bankruptcy. On the other hand, the creditor continued to oppose her...

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