Burchell v Official Assignee - [2017] NZHC 1508

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2016-404-3053

[2017] NZHC 1508

BETWEEN
LLEWELLYN BURCHELL

Applicant

AND

THE OFFICIAL ASSIGNEE

First Respondent

ROYDON McGEE

Second Respondent

Hearing: 4 May 2017

Counsel:

Applicant in person

M Deligiannis and M Cook for Respondents

Judgment:

3 July 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 3 July 2017 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

\

Solicitors: M Deligiannis, Wellington
Crown Law, Wellington

Copy to: The Applicant

BURCHELL v THE OFFICIAL ASSIGNEE & ANOR [2017] NZHC 1508 [3 July 2017]

[1] This is an interlocutory application by the respondents to strike out Mr Burchell’s claim. I must also address a costs issue arising out of an application for a stay of execution in relation to a discharge of property (being Mr Burchell’s two motorcycles). The background to this is that the Official Assignee consented to the two motorcycles being vested in Mr Burchell, which resolved the stay of execution application.

Background

[2] Mr Burchell was bankrupted on 29 June 2004. He was discharged on 10 September 2009. On 1 December 2010, the Commissioner of Inland Revenue obtained judgment against Mr Burchell for $34,072.47.1 Mr Burchell unsuccessfully applied to set aside that judgment. The Commissioner of Inland Revenue then sought and obtained an order for bankruptcy based on this debt on 16 December 2011.2 This was Mr Burchell’s second bankruptcy.

[3]All of the above is a matter of record.

[4]Mr Burchell claims that:

(a)the Inland Revenue Department (IRD) fabricated the debt;

(b)he was bankrupted on the basis of this debt;

(c)he has been held in bankruptcy since; and

(d)he has been denied information, misdirected by the IRD and the Official Assignee and assaulted when he has tried to comply and seek discharge from bankruptcy.

[5]He advances two causes of action:

1 Commissioner of Inland Revenue v Burchell DC North Shore CIV-2010-044-274, 1 December 2010.
2 Burchell v Commissioner of Inland Revenue HC Auckland CIV-2011-404-3464, 16 December 2011.

(a)deceit; and

(b)misfeasance in public office.

[6] Mr Burchell identified the refusal by the IRD to provide him with information that might assist him in discharging his bankruptcy as central to both the deceit and the misfeasance claims. Similarly, Mr Burchell identified the refusal by the Official Assignee to process the relevant paperwork to secure discharge of his bankruptcy as indicative of deceit and misfeasance.

In-trial orders

[7]At the conclusion of the hearing, I made the following orders:

(a)Mr Burchell had two weeks to file any submissions in response to the submissions by the applicants.

(b)I directed that the applicants provide an affidavit relating to service of the interlocutory application.

(c)I granted leave to the applicants to file further submissions, in the event that the courier package documentation could not be found (or did not exist).

(d)I also granted leave to Mr Burchell to file evidence in relation to his first bankruptcy. He alleged that one aspect demonstrating bad faith is…

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 Burchell v Official Assignee

Details

AGLC: Burchell v Official Assignee [2017] NZHC 1508
Case: [2017] NZHC 1508
Decision Date: 3 July 2017

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, dealt with an interlocutory application by the Official Assignee and Roydon McGee to strike out Llewellyn Burchell's claim and a costs issue arising from an application for a stay of execution in relation to the discharge of Burchell's two motorcycles. Burchell was bankrupted in 2004 and subsequently in 2011 on the basis of a debt owed to the Commissioner of Inland Revenue. Burchell brought two causes of action: deceit and misfeasance in public office. The Official Assignee and McGee argued that Burchell's claims did not disclose facts capable of establishing the tort of deceit and that the allegations of misfeasance were speculative and without foundation. The court agreed with the applicants, finding that Burchell's claims were baseless and struck out the statement of claim against the respondents. The court also dismissed Burchell's application for costs in relation to the vesting of his motorcycles. Burchell's complaints regarding the service of documentation by the applicants were considered, and the court found that the applicants had acted reasonably in serving the documents.

The court's decision to strike out Burchell's claim was based on several factors. Firstly, the court found that Burchell had not identified the correct defendant in relation to the deceit claim, as McGee had no role in Burchell's tax affairs before or at the time of his bankruptcy. Secondly, the court noted that the pleadings were entirely speculative and without foundation, particularly in relation to the IRD's assessment of Burchell's tax debts. Thirdly, the court found that there was no false representation made by the Official Assignee, as the mere failure to process a statement of affairs did not ground a claim in deceit. In relation to the misfeasance claim, the court found that the allegations were intrinsically unlikely and contrary to the evidence of the respondents. The court also noted that the allegations were speculative and without foundation, frivolous, vexatious, and amounted to an abuse of process. The court held that the bare allegations of assault, process delay, and the disclaimer did not establish the requisite bad faith for a claim of misfeasance in public office.

Orders