Bryers v Official Assignee - [2014] NZHC 2920

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-3694 [2014] NZHC 2920

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: 14 November 2014

Appearances:

Mr Nicholls for bankrupt
Mr Cornege for Official Assignee

Judgment:

21 November 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
21.11.14 at 5 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Bankruptcy of BRYERS v OFFICIAL ASSIGNEE [2014] NZHC 2920 [21 November 2014]

Background

[1] The bankrupt, Mark Ronald Bryers, made an application to be discharged from bankruptcy pursuant to s 294 of the Insolvency Act 2006 (“the Act”). The matter was set down for a three day hearing on an opposed basis to commence on 12
November 2014. However, shortly before the hearing, the bankrupt filed affidavits from four persons in support of his application.

[2] The Official Assignee through counsel, Mr Cornegé, objected to the affidavits being filed. The fixture was not able to proceed on the scheduled day because there would not have been time to deal with the additional affidavits. The fixture was therefore vacated and in its place a directions hearing was scheduled for
14 November 2014 to deal with the issue of whether the affidavits should or should not be read as evidence in the proceeding.

Counsel’s submissions

[3] Counsel for the Official Assignee, Mr Cornegé, submitted that the issue of whether a bankrupt can file material in support of his or her discharge has never been specifically addressed in the courts.

[4] The objection which was advanced by Mr Cornegé as to the filing of the affidavits was essentially that the procedure which was established under the Act for hearing applications for discharge did not contemplate the filing of evidence by what Mr Cornegé termed were “third parties”. He submitted that the statutory framework did not intend public examinations to take the form of a typical civil trial/defended hearing.

[5] Mr Cornegé accepted that on an application for discharge by a bankrupt and in circumstances where the Court was hearing an objection by the Official Assignee to an automatic discharge,1 it was indeed legitimate for the bankrupt to put material before the Court which supported the bankrupt’s position. Mr Cornegé accepted that what might broadly be termed “the right to be heard” which is a recognised element of compliance with the rules of natural justice demanded such an outcome.

However, he did not accept that this other material could include affidavit evidence from witnesses for the bankrupt. Exactly how the bankrupt would put material before the Court, as the Official Assignee conceded he could, without filing affidavits was not explained.

[6] Mr Cornegé stressed that the procedure that is followed under the current insolvency legislation, and which has been basically the same back to…

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 [2014] NZHC 2920
Case: [2014] NZHC 2920
Decision Date: 21 November 2014

CaseChat Overview and Summary

The case of Bryers v Official Assignee involved an application by Mark Ronald Bryers to be discharged from bankruptcy, opposed by the Official Assignee. The core legal issue was whether a bankrupt could file affidavits from third parties in support of their discharge application, a practice not explicitly addressed in the Insolvency Act 2006. Counsel for the Official Assignee argued that the statutory framework did not permit such filings, while counsel for the bankrupt contended that the principles of natural justice required the Court to consider all relevant evidence. The Court found that the statutory provisions did not comprehensively cover the procedure for discharge hearings, leaving room for the Court to supplement the statutory process to ensure fairness. The Court concluded that allowing the bankrupt to file affidavits did not conflict with the objectives of the Act and would not unduly burden the Official Assignee. The Court granted the bankrupt leave to file and serve affidavits, emphasizing the need for proportionality and relevance in the evidence presented.

Orders