Bryers v Official Assignee - [2015] NZHC 384

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 Assignee

Judgment:

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…

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 Bryers v Official Assignee

Details

AGLC: Bryers v Official Assignee [2015] NZHC 384
Case: [2015] NZHC 384
Decision Date: 6 March 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Bryers v Official Assignee involved a bankruptcy proceeding where Mark Ronald Bryers sought discharge from bankruptcy. The Official Assignee objected to the discharge, leading to an examination of Bryers. The court was required to decide whether Bryers should be discharged from bankruptcy and, if so, under what conditions. The primary legal issue was whether Bryers represented a continuing commercial risk to the public, warranting restrictions on his activities post-discharge.

The court concluded that Bryers did represent a continuing commercial risk due to his lack of insight into the harm caused by his actions and his potential to engage in risky business operations. The court found that Bryers’s involvement in managing a company in Australia, albeit under an assumed name, did not constitute a breach of New Zealand law but was relevant to assessing his risk profile. The court decided that discharging Bryers without conditions would not adequately protect the public. Therefore, the court imposed a seven-year prohibition on Bryers from engaging in business activities in New Zealand, including being a director or involved in the management of any company, being employed by a relative, or being employed by entities managed or controlled by relatives. The discharge was subject to Bryers paying the Official Assignee’s costs and any unpaid court costs, with further directions to be given if the parties could not agree.

Orders