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Bamber v Official Assignee

Bamber v Official Assignee

Case [2023] NZHC 260 23 February 2023

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-77

[2023] NZHC 260

WĀHANGA

-UNDER
Section 414(1) of the Insolvency Act 2006

MŌ TE TAKE

-IN THE MATTER

of the reserved judgment of District Court Judge RLB Spear dated 27 July 2022

I WAENGA IA

-BETWEEN

KATHLEEN MATA BAMBER and BRUCE ANDERSON

Ngā Kaipira
-Appellants

ME

-AND

THE OFFICIAL ASSIGNEE

Te Kaiurupare

-Respondent

Nohoanga
-Hearing:
21 February 2023

Kanohi kitea
-Appearances:

C B Hirschfeld for the Appellants RMG Hindriksen for the Respondent

Whakataunga
-Judgment:

23 February 2023

TE WHAKATAUNGA Ā KAIWHAKAWĀ MĀTĀMUA HARVEY JUDGMENT OF HARVEY J

This judgment was delivered by me on 23 February 2023 at 10.30 am
pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

Solicitors:
Foster Milroy, Hamilton Meredith Connell, Auckland

Counsel:
C Hirschfeld, Barrister, Auckland

BAMBER v THE OFFICIAL ASSIGNEE [2023] NZHC 260 [23 February 2023]

Hei tīmatanga kōrero

Introduction

[1] In July 2019, Kathleen and Bruce Bamber were adjudged bankrupt over a debt that at that time amounted to $175,851.25 that they owe to the Tahorakuri A 1 Section 33A2 Trust (the Tahorakuri Trust) at Reporoa near Taupō. On 27 July 2022, Judge RLB Spear in the District Court ordered that Mr and Mrs Bamber’s property at 18 Wingrove Road, Ōwhata, Rotorua be vested in the Official Assignee under the Insolvency Act 2006.1

[2] They appealed that decision to this Court on two grounds. First, they argued that the learned Judge should have allowed the kaumātua to speak to their affidavit evidence at the hearing. Secondly, the Bambers contended that it is contrary to tikanga Māori that they should be removed from what had been their papakāinga or home in order to satisfy a debt owed to the Tahorakuri Trust. Instead, they submitted that the issue should be referred to mediation so that, in accordance with tikanga, they can attempt a resolution of the matters outstanding between them and the trust.

[3] The issue for determination is whether tikanga Māori is relevant to the issuing of orders under s 152 of the Insolvency Act 2006.

Kōrero whānui

Background

[4] The following summary is taken from the Assignee’s factual chronology and from judgments of the Māori Appellate and Māori Land Courts.

[5] Tahorakuri A No 1 Section 33A2 is a block of Māori freehold land, located near Broadlands between Reporoa and Taupō, with an area of 38.56 hectares. It was created by partition order dated 27 March 1991.2 There are currently 16 owners in the land holding a total of 100 shares. Almost invariably, those owners will all be related by blood and descend from common tīpuna or ancestors.

1 Official Assignee v Bamber [2022] NZDC 13038. The Wingrove Rd property is general freehold land and is not located on the Tahorakuri block.
2 65 Taupo MB 114 (65 TPO 114).

[6] In 1983, Mr and Mrs Bamber entered into a lease over the Māori freehold land known as Tahorakuri A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bamber v Official Assignee

Details

AGLC: Bamber v Official Assignee [2023] NZHC 260
Case: [2023] NZHC 260
Decision Date: 23 February 2023

CaseChat Overview and Summary

Kathleen and Bruce Bamber appeal against the decision of the District Court that ordered the vesting of their property at 18 Wingrove Road, Ōwhata, Rotorua, in the Official Assignee under the Insolvency Act 2006. The Bambers contend that the decision should be set aside on the basis that the learned Judge should have allowed the kaumātua to speak to their affidavit evidence at the hearing and that it is contrary to tikanga Māori that they should be removed from their home. The central issue is whether tikanga Māori is relevant to the issuing of orders under s 152 of the Insolvency Act 2006.

The Court considered the arguments from both sides. The Bambers’ counsel argued that the Judge should have allowed the witnesses to speak to their evidence and that the failure to do so demonstrated a disrespect toward tikanga Māori. Counsel also submitted that tikanga, like equity, had the ability to be flexible and to take account of changing circumstances, and that this was because both had the ability to ameliorate the extreme inflexibility of the common law. On the other hand, the Official Assignee argued that it is inconsistent with the statutory scheme of the Insolvency Act for the Court to consider granting an order under s 152 being contingent on the application of tikanga. Counsel also submitted that the Bambers’ interest and associated rights in the property have been extinguished by legislation and that it is no longer their land and buildings.

The Court found that while it might have been preferable for the Judge to have permitted the witnesses to speak during the hearing, it was within his authority to determine the procedure for the case and to rely on the affidavit evidence. Moreover, the Court held that even if she were a member of the various iwi and hapū of Te Arawa, that cannot defeat s 152 of the Insolvency Act. In short, tikanga, given the facts of this case, cannot be applied in the manner proposed to effectively override the applicable statute.

Accordingly, the appeal by Kathleen and Bruce Bamber against the 27 July 2022 decision of the District Court is dismissed. The Official Assignee is to recover his costs of the appeal from the Bambers.

Orders