Bryers v Official Assignee
[2015] NZHC 384
•6 March 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-3694 [2015] NZHC 384
IN THE MATTER OF The Insolvency Act 2006 IN THE MATTER OF
The bankruptcy of Mark Ronald Bryers
BETWEEN
MARK RONALD BRYERS Applicant
AND
OFFICIAL ASSIGNEE Respondent
Hearing: 2-3 March 2015 Appearances:
Mr Chisholm QC for Mr Bryers
Mr P Cornege for Official AssigneeJudgment:
6 March 2015
JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE
This judgment was delivered by me on
06.03.15 at 4 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Bankruptcy of BRYERS v OFFICIAL ASSIGNEE [2015] NZHC 384 [6 March 2015]
Introduction
[1] Mr Bryers was adjudicated bankrupt on 1 October 2009. He would have been entitled to a discharge, in the normal course, on 23 October 2012. However, on 12
December 2011 the Official Assignee (“OA”) objected to the discharge. As a result of the OA’s objection, it became necessary to conduct an examination of Mr Bryers.1
That examination took place on 2 and 3 March 2015.
Background
[2] The brief history of the matter is that Mr Bryers was the creator of a scheme of investment for retail investors carried on in New Zealand. It is not necessary to go into the detail of the corporate arrangements of the Blue Chip companies other than to note that the umbrella company was Northern Crest Investments Limited. In the wake of the collapse of the Blue Chip Groups, that company was liquidated on 2
June 2011.
[3] Briefly summarised, the Blue Chip system enabled retail investors to buy pre- leased residential investment properties. Packages included available finance to enable him to purchase those properties.
[4] Some time before the New Zealand Blue Chip Group met its demise, Mr Bryers had left New Zealand and he his full time place of residence since 2006 has been in Australia. He has come and gone to New Zealand on a number of occasions to attend interviews and examinations instigated by the OA’s office. There is no doubt that his overseas travel and residence has been with the consent of the OA.
[5] Northern Crest Investments Limited was eventually listed on the Australian Securities Exchange but was de-listed following its liquidation in New Zealand. An attempt to replicate a Blue Chip–type business in Australia was unsuccessful. The OA has offered the opinion that that was because of the more complicated regulatory environment in Australia and because interest is not so high in that country in investment in residential real estate
[6] On 20 May 2010, Mr Bryers was convicted of charges of failing to comply
with the Financial Reporting Act 1993 and the Companies Act 1993. Pursuant to s
1 Insolvency Act 2006, s 296.
385 of that Act, Mr Bryers was prohibited from managing companies for a period of five years. His counsel told me at the hearing into his discharge that Mr Bryers did not defend those proceedings “due to his financial position”.
The Official Assignee’s grounds for opposing discharge
[7] In the initial submissions which Mr Cornege made on behalf of the OA, three principal concerns were put forward for the Official Assignee opposing Mr Bryers discharge from bankruptcy:
The Official Assignee has three principle concerns regarding the bankrupt’s
discharge from bankruptcy or future involvement in business in New Zealand:
The losses to creditors in his bankruptcy were substantial, exceeding $150 million; The bankrupt bears some (but not complete) responsibility for the collapse of the
Blue Chip group, and the resulting loss to investors (none of whom are creditors in his bankruptcy); and
It appears that the bankrupt may be in breach of ss 149/436 of the Act.
[8] The position of the OA was stated as follows:
The outcome of the public examination will, ultimately, be a matter for the Court, and the OA does not take a firm position, particularly in light of the length of time since the bankrupt was adjudicated.
However, given the magnitude of the losses to creditors, the bankrupt’s involvement in the collapse of Blue Chip, and his apparent involvement in the management of a business without consent, the OA submits that an appropriate outcome may be a discharge subject to an indefinite prohibition on the bankrupt engaging in business in New Zealand pursuant to s 299(2)(a) of the Insolvency Act 2006 (the Act).
[9] To complete the description of the OA’s position, brief reference is required to be made to the report of the OA dated 21 October 2014. In the initial report, the summarised grounds for opposition were stated as being that Mr Bryers was directly or indirectly responsible for substantial losses of the Blue Chip Group.. There had been limited recoveries in his bankruptcy and Mr Bryers appeared to have limited insight into what went wrong for his contribution to the events.
[10] It was also of concern that he was involved in a company called Talos, an Australian corporation. It was also contended that his involvement in that company was greater than Mr Bryers had been prepared to acknowledge.
[11] It was submitted that Mr Bryers did not intend to return to New Zealand and that therefore it can only be because his continuing bankruptcy in New Zealand would constitute an impediment to him being a director of the Australian company that was motivating him to seek a discharge.
[12] In the initial report, the Official Assignee expressed the view that Mr Bryers should not be discharged unconditionally, that he is a genuine commercial risk and that if he is discharged, he should be prohibited from engaging in business after discharge pursuant to s 299 of the Insolvency Act 2006 and that that prohibition have no time limit. However, as I have noted, there was some modification of that position in the submissions that were filed on behalf of the OA.
[13] By the time the matter came to the hearing, the OA had modified her position. The OA confirmed that, given that Mr Bryers period of bankruptcy is nearing five and a half years, “no particular outcome is sought, and she is in the court’s hands”.
Principles
[14] Mr Cornege made the following submissions concerning the principles that were applicable where the Court is considering an objection to discharge.
“In ASB Bank v Hogg, the Court of Appeal said, in respect of the Court’s
discretion concerning discharge, that:2
In conferring a discretion expressed in the broadest terms, the legislation recognises that each case will be different, that the relevant factors may vary from case to case and that the exercise of the discretion must be governed by the circumstances of the particular case having regard to the guidance provided by a consideration of the scheme and purpose of the legislation. In providing for automatic discharge after three years, the legislation recognises that it is not in the public interest that the bankruptcy should endure indefinitely. In providing for earlier discharge, s 108 recognises that continuing the bankruptcy to the end of the three years may not be in the public interest. Whether or not it is will be a matter for decision on the particular facts. In that regard, guidance is provided by s 109(2) which lists matters on which the assignee is to report to the High Court in such a case. The Court is to consider the assignee's report as to the affairs of the bankrupt, the causes of the bankruptcy, the manner in which the bankrupt has performed the duties imposed on him or her under the Act and his or her conduct both before and after the bankruptcy, and also as to any other fact, matter or circumstance that would assist the Court in making its decision. Clearly the Court apprised of the matter will consider the legitimate interests of the bankrupt, the creditors and wider public concerns, but it is neither required nor entitled to impose threshold requirements in the exercise of the discretion so as to derogate from the breadth of the powers conferred under s 110.
2 ASB Bank v Hogg [1993] 3 NZLR 156 (CA) at 157-158.
[15] In Re Whitelaw,3 the legal principles for consideration of an objection by the Official Assignee to a discharge from bankruptcy were summarised (under the Insolvency Act 1967, which has materially similar provisions to the Act):4
(a) The onus is on the OA to satisfy the Court that it is in the public interest that the bankruptcy which would otherwise automatically be discharged after three years should continue for a further period;
(b) The Court has a broad discretion to exercise in regard to all the circumstances of the particular case;
(c) In the absence of good reasons, a bankrupt should normally obtain a discharge;
(d) Public interest factors may, however, mean that an order of discharge should be refused;
(e) As indicated by the matters on which the Assignee is required to report under section 109(2) of the Insolvency Act 1967, the Court should consider the manner in which the bankrupt has performed the duties imposed on him under the Act and his conduct both before and after the bankruptcy and any other matters that may assist the Court in making its decision; and
(f) The relevant matters therefore include: the interests of the bankrupt; the interests of the creditors; the public interest; and commercial morality and the conduct of the bankrupt.
[16] The only disagreement that I have with the submissions which Mr Cornege made on this point concerns his contention that one of the objectives of bankruptcy law is punishment of the bankrupt. I prefer to follow Re Kelly ex parte Structured Finance Ltd where Asher J said:5
The public interest is best approached from the perspective of protecting the public from the insolvent debtor. The issue is not the punishment of the debtor, but avoiding the risk of further conduct to the detriment of the community, in particular in this case the commercial community.”
[17] A further factor that the Court ought to take into account when exercising the jurisdiction to grant a discharge is that where the size of the deficiency in the
3 Re Whitelaw HC Hamilton CIV-2004-419-1647, 10 September 2010 at [20].
4 CF Re Anderson HC Hamilton B213/89, 14 April 1992; ASB v Hogg [1993] 3 NZLR 156 (CA),
Re Edwards HC Auckland CIV 65/98, 13 May 2003; Edwards v Official Assignee CA236/03, 1
April 2004.
5 Re Kelly ex parte Structured Finance Ltd [2009] 2 NZLR 785 at [63].
bankruptcy is large, there is authority to the effect that weight ought to be given to that matter when considering the timing of the discharge.6
Conduct prior to adjudication
[18] A key aspect of the conduct of the bankrupt prior to adjudication concerns the way that he conducted his financial affairs. The first part of the matters to be discussed concerns the issue of the extent of Mr Bryers responsibility for the losses of the Blue Chip companies.
The Blue Chip Losses
[19] Initially, the intention of the OA was to invite consideration of the losses which were suffered in the liquidation of various Blue Chip companies that Mr Bryers was involved in. The OA said that the liquidation of the 71 companies in the group and receivership had resulted in losses to creditors of approximately $310 million.
[20] I have already commented on the fact that the losses to creditors of Mr Bryers personally amounted to $150 million. While such losses are very large, in addition to that figure of the Blue Chip losses would have painted a picture of phenomenally large financial damage being attributable to the actions of Mr Bryers.
[21] Early in the course of the application, though, I raised with Mr Cornege the question of how the Court could be expected to resolve the losses that were suffered by the Blue Chip group and, more importantly, Mr Bryers portion of the responsibility for those losses. While it is the case that Mr Bryers was the founding father of Blue Chip, he was not the only person involved in the operation of the corporate vehicle through which the business was carried on in New Zealand, Blue Chip Financial Solutions (NZ) Limited. He was one of a number of directors. It seemed that, in the absence of expert evidence, it would be impossible to conduct an enquiry designed to apportion blame to the various participants personally involved in the Blue Chip companies.
[22] In the end, the matter was resolved by Mr Cornege, in his final submissions,
telling me that he accepted that:
6 Re Anderson High Court Hamilton B 213/89, 14 April 1992.
3.As to the relevance of the Blue Chip material, the Official Assignee accepts that there is not a sufficient nexus between the collapse of the Blue Chip Group (even assuming Mr Bryers played a material role in it), and his bankruptcy.
[23] It would be one thing, for example, if his personal guarantees at all related to Blue Chip companies and that resulted in the bankruptcy. The extent to which he was then responsible for the collapse of the Group might be relevant, but that is not the position. He accepted that any assessment of responsibility could be undertaken by “other remedies” available to creditors and that there are regulatory bodies who might properly consider that sort of material but it was not the role of the court in bankruptcy, in his submission, to undertake such a task. The purpose of the bankruptcy proceedings was to protect the public.
[24] In this regard, the position that Mr Cornege took aligned with the submissions that Mr Chisholm QC made on behalf of, Mr Bryers. That being so, I do not intend to further comment on the question of the Blue Chip losses.
The bankrupts debts
[25] Questions of assessment of responsibility do not arise in the case of the bankrupt’s personal debts. He, alone, is the author of the transactions which resulted in those losses. There may be arguments about the extent of the care that he exercised and his prudence or lack of it, of course. However, as a generality, it can be said that those who become involved in large-scale transactions of the kind that Mr Bryers engaged in, by doing so, are setting in train events that have the potential to cause widespread financial loss. The greater the repercussions to the commercial community if the transactions were to go wrong, the greater restraint and care is called for. Mr Bryers views the causes of the losses as stemming indirectly, at least, from the poor governance of the Blue Chip companies as a result of decisions by other directors. He is also of the view that the intervention of the Global Financial Crisis was an unexpected contributor to his financial downfall.
[26] What is of significance though is the resources that Mr Bryers had available to meet guarantees that he gave personally. The case for the OA was that the structure which Mr Bryers had adopted with his affairs was that a trust/s had been created which held assets to which Mr Bryers did not have any right of access and in regard to which he would only ever participate, if at all, as a discretionary
beneficiary. This may well explain why, as it turned out, that when the guarantees of liability of the New Zealand franchise to Mide Group Ltd were called up, there were no assets available to meet the call.
[27] It was not contested, either, that the OA correctly described such assets as the trusts held as being largely shares in Blue Chip related companies. So, as Mr Cornege pointed out, the very event that could lead to the guarantee being enforced would, at the same time, reduce the value of the assets. That is because if the circumstances ever arise where guarantees had to be enforced, it was likely to be in circumstances where the shares were of reduced value.
[28] An essential component of the Blue Chip schemes involved acquiring property from a related corporate property developer, Ingot. Because of the way the funding of Blue Chip was arranged, it would not be able to tolerate delays in the completion of properties which could be used to satisfy the contractual obligations of Blue Chip to its clients. The cash resources would otherwise be consumed. So it was not as though the guarantees which were at the end of the chain of obligations could be assessed as low risk in the sense that there was little risk of Blue Chip defaulting. Ultimately, that is what happened and ultimately that is the cause of Mr Bryers’s bankruptcy. Even if he is not to be criticised for his part in the failure of Blue Chip, adopting a structure that was critically dependent upon the viability of Blue Chip, in all the circumstances, was risky.
Summary
[29] Even if attention is confined to the question of the debts that Mr Bryers personally incurred, the picture that emerges is of a business person who is prepared to structure his arrangements in such a way that large-scale losses could not be avoided by creditors having assets to resort to. The fact that the guarantees were inherently risky meant that the overall position that Mr Bryers got himself into was hazardous.
Conduct since adjudication
[30] The OA advised that Mr Bryers completed the sentence of 75 hours community work and paid the fine of $37,490 plus Court costs, which was imposed upon them. The only funds which the OA recovered in the bankruptcy was the sum
of $113,166.23 held to the credit of the bankrupt by the Inland Revenue. No other contributions have been made by the bankrupt to his debts.
[31] The OA is critical of a number of aspects of Mr Bryers’s post-adjudication conduct. It is said that Mr Bryers has taken himself off to Australia and has been taking advantage of the fact that he is able to work out of the jurisdiction and beyond the control of the New Zealand Official Assignee. It was further asserted that, by taking part in the management of Talos, he may have breached s 149 of the Insolvency Act 2006.
Working out of New Zealand
[32] I do not agree that Mr Bryers is to be criticised because he has been working out of New Zealand. It is correct that while he is residing in New Zealand, he is bound by his obligations under the Act. An undischarged bankrupt is unable to leave New Zealand without the consent of the Official Assignee.7 It is clear however that Mr Bryers has not absent himself from New Zealand other than with the consent of the Official Assignee.
[33] That being so, I am unable to accept that Mr Bryers is to be criticised for doing something which he was legally entitled to do.
Breach of s 149 of the Insolvency Act 2006 – prohibition on bankrupt entering business
[34] Section 149 of the Act forbids an undischarged bankrupt from entering or carrying on business or to take part in the management or control of any business, directly or indirectly, without the consent of the Official Assignee. The OA alleged that Mr Bryers breached that provision by taking part in the management of a company called Talos in Australia.
[35] I am satisfied that the submission of Mr Chisholm, for the bankrupt, is correct that s 149 does not have extraterritorial effect and that it only applies to activities
carried on within New Zealand.8
7 Insolvency Act 2006, s 426.
8 Jamieson v Official Assignee [2012] NZHC 949, [2012] NZCCLR 8 at [49].
Assuming no breach of New Zealand law, are the activities of Mr Bryers in
Australia relevant to the discretion that the Court has to exercise?
[36] I have accepted that the actions of Mr Bryers in taking part in the carrying on of the Talos business in Australia does not amount to a contravention of s 149 of the (New Zealand) Act because that provision does not have extra-territorial operation. That being so, it remains to be considered whether the conduct on the part of Mr Bryers in Australia has any bearing on the way the Court should exercise its discretion to withhold a discharge or to impose conditions on a discharge.
[37] I consider that, notwithstanding the fact that Mr Bryers’s activities in Australia could not constitute an offence under New Zealand law, that is not necessarily irrelevant to the discretion which the Court has to exercise.
[38] The question that arises is whether the conduct of the bankrupt gives rise to an inference that it would not be desirable for him to be able to carry on business activities without the restrictions of bankruptcy in New Zealand. It should not matter where a bankrupt’s activities took place, the important question is what information they provide about the likely future conduct of the bankrupt and whether he might be expected to behave in a commercially hazardous way. Plainly, if the activities of Mr Bryers in Australia had the effect of contravening the relevant statutory codes relating to the management of companies in Australia, then it would be relevant to forming an assessment of what risk Mr Bryers would pose if he were to ever return to New Zealand to carry on business.
Sections 206A and 260B Corporations Act 2001 (CTH)
[39] The Corporations Act 2001 (CTH) provides as follows:
Disqualified person not to manage corporations
(1) A person who is disqualified from managing corporations under this
Part commits an offence if:
(a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(b) they exercise the capacity to affect significantly the corporation's financial standing; or
(c) they communicate instructions or wishes (other than advice given by
the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation) to the directors of the corporation:
(i) knowing that the directors are accustomed to act in
accordance with the person’s instructions or wishes; or
(ii)intending that the directors will act in accordance with those instructions or wishes.
[40] It was not disputed between the parties that Mr Bryers is a person who is disqualified from managing corporations within the meaning of s 206A.
[41] The scope of s 206B was considered by the full Federal Court of Australia in
Murdaca v Australian Securities and Investments Commission:9
A person who, strictly speaking, is not a director of a corporation may nevertheless be disqualified from managing a corporation if that person is involved in, or participates in, the management of a corporation in ways which are considered to constitute directing or controlling the affairs of that corporation either alone or in company with others. Such persons are sometimes referred to as deemed or shadow directors: (see Ho v Akai Pty Limited (In Liq)) (2006) 24 ACLC 1526.
[42] In order to decide whether Mr Bryers breached section 206B, it is necessary to examine the evidence that the OA produced.
The evidence concerning employment by Talos
[43] Evidence was presented in the form of emails that had been obtained from sources in Australia, which appeared to have been taken from servers belonging to Talos, the company with which Mr Bryers is associated in Australia. The OA did not put any evidence forward apart from referring to the documents to which I have made reference.
[44] Mr Chisholm was critical of this material which he said came from an unknown source but which those associated with Mr Bryers suspected was a disaffected former employee of Talos. I do not however accept those criticisms, with two possible exceptions. The reason for that view is that the documents were all put to Mr Bryers for comment. It was open to him, and indeed he took the opportunity
to, assert that one of the documents, a job offer to Ms Hukin, was a forgery. Beyond
9 Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92, at [85].
that, he was able to comment generally on the emails. His comments in each case, far from disavowing knowledge of them or casting doubt on their validity, was an attempt to explain them and the context in which they were exchanged.
[45] I will not deal with all of the instances of email communications which the OA drew to the Court’s attention and which was said to justify a conclusion that Mr Bryers was involved as a shadow director of the company in Australia. Relevantly, I refer to two emails.
[46] The first involved Mr Steven Skinner and concerned the question of what fees were to be charged. This apparently involved a matter about which there had been some dispute. On 5 June Mr Bryers, as “Mark Ryan”, emailed Robert Hughes and a Mr Powell and also Mr Skinner:
We are hooking up at 4 after I have sent an email to you all in regards to my decision on the fees.
[47] Later in the same day, Mr Bryers as “Mark Ryan” sent a further email which
began with the words:
My decision which is no longer up for discussion…
[48] He then set out what he had decided in regards to the fees.
[49] Other email communications involving Mr Skinner were also produced. One email string dealt with a dispute that occurred which involved an employee or contractor called Steven Skinner. There had earlier been exchanges between Mr Skinner and Mr R Hughes whose role was in the area of human resources.
[50] Mr Bryers sent Mr Skinner an email on 14 July 2014, copying the same to Mr Hughes and to a Mr Stephen Lacy. Mr Lacy was a director of the company. The email stated, in part:
Please note that your direct report is Bob [Hughes], and that in the future please deal with any HR directly with him. You do of course have the right to an escalation point to myself if there is a total breakdown at a point in time with Bob. Stephen does not deal with daily operational matters.
[51] As he did on a number of occasions, Mr Bryers attempted to assert that while as a “matter of semantics” one might read this as indicating that he occupied a higher point in the hierarchy of the company than Mr Hughes, that was not in fact the case and indeed the reverse was true. He resisted the suggestions of Mr Cornege that the
reference of the term “escalation” showed that the employee had the right to bring
the matter up to Mr Bryers if he could not resolve it with Mr Hughes.
[52] Notwithstanding Mr Bryers’s attempts to explain away this contemporaneous document, I have no doubt that it provides an insight into the correct position that Mr Bryers occupied with regard to Talos. He was not just a consultant but was actively involved in the management of the company. I accept, though, that on its own, the subject matter of the email exchange with Mr Skinner and Mr Hughes could hardly be viewed as taking decisions for the directing or controlling of the company as a whole or, to put it another way, a functioning as a shadow director.
[53] On another occasion, Talos entered into a licence to another company to use premises at its registered office. For Talos, the licence agreement was signed on 7
August 2013 by Mr Bryers. The agreement included a blank space opposite the printed word “position” and there it appears that Mr Bryers has written “manager”. [54] A further contemporaneous document that throws light on the true position is a press release that was issued on behalf of Talos by a public relations firm which, the New Zealand Herald, 16 October 2014 reported was acting for Talos. The statement was issued after disclosures were made in New Zealand that Mr Bryers was using the name Mark Ryan to run a business in Australia. The statement attributed to Talos was as follows:
Talos Accounting confirms that Mark Bryers (also known as Mark Ryan) is not, nor has ever been, a shareholder or director of Talos Accounting. Whilst Mark Bryers undertook various management roles at no time was he responsible for managing the company.
Mark Bryers was engaged as a consultant there his employer by Talos
Accounting. That consulting arrangement came to an end on 15 August
2014 and he is no longer engaged by the company in any capacity.
Talos Accounting was aware that Mark Bryers was working under the name of Mark Ryan in order not to draw attention to himself, given the intensity of media attention his name draws. Talos Accounting was aware of Mark Bryer’s history in New Zealand. However we felt this was not material to the consulting services he provided to the company.
[55] The reference to “various management roles” is also supported by at least one document which Talos produced. That was a Talos Head Office organisation chart which set out the responsibilities of various managers working for the company and in which the listing appears:
STRATEGIC Mark Ryan
Evidence of Mr Bryers and witnesses
[56] Mr Bryers and witnesses called on his behalf, Mr Eakins and Mr Hughes, who were both questioned about this aspect of the matter. I consider it a fair summary to say that they both considered Mr Bryers to be a consultant employed by a firm called “Foresite” or “Foresite Marketing”. In fact, the question whether Mr Bryers was in a contractual nexus with Foresite and received his remuneration from it would not seem to be decisive of the question of whether he had contravened the law of Australia. It could well be that no matter who he was employed by he was making director-level decisions in respect of Talos. Beyond that, it can be said that Talos and Mr Bryers adopted measures which were designed to portray Mr Bryers as having a less direct activity in the affairs of Talos than he actually did. I refer to the fact that he was presented to the outside world as being a “consultant” to the company and, to support that impression, a contractual structure was adopted that was intended to show that he was an employee or independent contractor engaged by Foresite.
Conclusion on possible breach of s 260B
[57] The individual instances of Mr Bryers’s involvement in the affairs of Talos do not disclose activities at director level, although they do show that he was plainly not just a consultant to the company but was discharging management functions within it.
[58] While there are unsatisfactory aspects to the evidence that Mr Bryers gave, and that was given by the witnesses that he called (particularly the inconsistency of that evidence with contemporaneous documents), my conclusion is that even if the greatest weight possible is given to that evidence it does not disclose that Mr Bryers was in breach of s 260B of the Corporations Act 2001 (CTH).
Working under an assumed name
[59] Reference has already been made to the fact that Mr Bryers has been working under an assumed name in Australia. Mr Chisholm’s submission was that it is not against the law to do what Mr Bryers has done and that this aspect of the matter can be dismissed as being of no importance.
[60] The reasons why Mr Bryers was working under an assumed name was explained to me by Mr Eakins. It was because Talos had concerns that it would be damaged by any association between itself and Mark Bryers. That seems to be correct. Mr Bryers himself did not apparently see any problem with this tactic. However, although it may not in the overall scheme of things be particularly important, it has to be recognised that the purpose of Mr Bryers adopting the alias was to deceive people dealing with him in his role at Talos as to what his antecedents were. Neither Talos nor Mr Bryers wanted that to get out that he was a person with an undesirable business history in New Zealand. It may well have been material to decisions made by people intending to go into business with Talos to know that “Mark Ryan” was in fact Mark Bryers. It was not something that, in my view, can be dismissed as being of trivial importance for which is relevant.
Court may restrict bankrupt from engaging in business after discharge
[61] The main issue that is the concern of the Court in this case is the protection of the public interest. There is no demonstrated need to continue the bankruptcy for other reasons such as ongoing investigation of possible assets which could be used to meet his creditors’ claims. The OA did not suggest that there was any further investigation of any kind which needed to be carried out. Nor is it necessary for the OA to remain in control of Mr Bryers’s affairs in order to bring claims in his name against third parties.
[62] Mr Bryers has stated that it is not his intention to return to New Zealand. However, he is free to do so and circumstances do change. His intentions may change. In deciding the question of whether his bankruptcy ought to continue, the Court is essentially required to decide whether Mr Bryers represents a continuing commercial risk and one that could potentially
result in further losses to the New Zealand investing public. If it is concluded that he still represents a risk, then the next question is whether continuing his bankruptcy is the best outcome to manage that risk or whether some lesser intervention is required, or no intervention at all.
[63] I conclude that Mr Bryers does represent a continuing risk. I agree with comments by the OA to the effect that he has little insight into the harm that he has done and he seems more concerned to place the blame for the losses caused in his bankruptcy on decisions that other persons made. He does not appear to understand that the large losses that resulted from his bankruptcy, if not exactly predictable, were made the more likely by the risky business operation that his guarantees were related to.
[64] If he were to return to New Zealand and re-involve himself in business, he would represent a commercial risk. The risk is that he will again be involved in businesses that are risky in nature and large in scale. There is therefore a risk of further losses to the public from Mr Bryer’s business activities.
[65] I accept, though, that because Mr Bryers is such a well-known figure in New Zealand there may not be a great deal of enthusiasm in the marketplace for future offerings associated with his name. On the other hand, there would be ways of concealing his involvement through use of trusts and companies, though, even if he stopped short of again using an assumed name.
[66] That said, I recognise that the probability that Mr Bryers will return to New Zealand and engage in business in this country is not a great one. It is clear that the reason why he wishes to be discharged from bankruptcy is not so that he can return to New Zealand to resume business but so that he can play an active part in businesses in Australia, such as the Talos enterprise, without risking contravention of Australian Corporation Law provision such as s 206B to which I have referred in this judgment. Whether it would be desirable for him to do so from the perspective of the Australian public is not something I need to comment on. It will be for the responsible authorities in Australia to judge that question.
[67] It must be also recognised, as the OA has properly conceded, that Mr Bryers is approaching the point where he will have served more than double the usual statutory period in bankruptcy.
[68] Under s 299 of the Act, if the Court discharges a bankrupt it may prohibit the bankrupt from entering into business, being a director of a company, being employed by a relative, or being employed by a company or trust that is managed or controlled by a relative. Any such prohibition may be imposed for a specified period or without a time limit. Given the continuing risk that Mr Bryers represents, I consider that there ought to be an order in this case restraining Mr Bryers from business activities in New Zealand. There will therefore be an order preventing Mr Bryers from:
(a) entering into, carrying on, or taking part in the management or control of any business or class of business:
(b) being a director of any company:
(c) directly or indirectly being concerned, or taking part, in the management of any company:
(d) being employed by a relative of the bankrupt:
(e) being employed by a company, trust, trustee, or incorporated society that is managed or controlled by a relative of the bankrupt.
[69] The next issue is the duration of such an order. Mr Bryers is already subject to a banning order under s 385 of the Companies Act 1993 for five years from 27 May 2010 which would therefore expire at the end of May
2015. That order did not add anything in substance to the disqualifications that he was subject to as an undischarged bankrupt.
[70] The policy behind the making of orders under s 399 would seem to be to ensure the protection of the commercial interests of New Zealanders. Consistent with cases such as Re Kelly,10 I would approach the decision on the basis that it is not the objective of the jurisdiction to make orders under
the Insolvency Act 2006 to punish the bankrupt – even though in some circumstances, the orders would have such an effect. In recognition of that consideration, it would seem that the appropriate approach is to make an order that has the effect of protecting the public and yet is not unduly punitive from the bankrupt’s point of view.
[71] Mr Bryers’s stated intention not to return to live in New Zealand assumes importance in this context. If what he says is correct, an order under s 399 of any duration would have little or no punitive effect. As I have noted elsewhere, though, circumstances can change. If there was a cast-iron assurance that he never would come back to New Zealand and start up business again, there would be no concerns about future harm to New Zealanders’ economic interests at his hands.
[72] Taking all these factors into account, I consider that protection of the public requires that the duration of the order be seven years from the date of its making. Such an order, when added to the period for which he has been an undischarged bankrupt, will mean that Mr Bryers will in total have been prevented from involvement in the management of businesses in New Zealand for a period of approximately 12 years.
[73] Before the orders take effect, though I shall wish to hear from the parties concerning whether the order should be conditional upon Mr Bryers paying the OA’s costs for preparation of the report to the Court11 and also upon any unpaid Court costs.
Conclusion
[74] Mr Bryers is discharged from bankruptcy. Pursuant to s 299 of the Insolvency Act 2006, Mr Bryers’s discharge is subject to the prohibitions listed at paragraph [71] of this judgment. The duration of that order is seven years.
[75] The order is not to be sealed until the issues concerning the OA’s costs and costs mentioned earlier have been resolved. The parties are to file memoranda concerning the issues within 10 working days. If the parties are unable to resolve the issue themselves by agreement, I will consider whether
additional directions on these matters should be included in the Courts overall
order.
J.P. Doogue
Associate Judge
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