Burgess v Official Assignee - [2019] NZHC 1324

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-439

[2019] NZHC 1324

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of Gary Owen Burgess

BETWEEN

GARY OWEN BURGESS

Applicant

AND

THE OFFICIAL ASSIGNEE

Respondent

Hearing: 27 May 2019

Appearances:

G O Burgess in person Applicant

D M L Dingwall for the Respondent

Judgment:

12 June 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

Background

[1] Mr Burgess who was bankrupted on 24 October 2017, wishes to appeal pursuant to s 226 of the Insolvency Act 2006 a decision of the Official Assignee to disclaim a litigation right asserted by Mr Burgess. The litigation right is represented by a proceeding CIV-2018-409-549, being a proceeding commenced by Mr Burgess after his adjudication. That proceeding was struck out by Associate Judge Osborne (as he then was) in a judgment of 29 October 2018.1

1 Burgess v Beaven [2018] NZHC 2793.

BURGESS v THE OFFICIAL ASSIGNEE [2019] NZHC 1324 [12 June 2019].

[2] That judgment records that the Official Assignee through counsel notified the Court that the Official Assignee had disclaimed her interest in any litigation rights asserted by Mr Burgess in that proceeding.

Preliminary issue – standing

[3] The Official Assignee in her notice of opposition to this appeal, raises a threshold issue as to whether Mr Burgess has standing to appeal the Official Assignee’s decision. The issue of standing was following a telephone conference set down for hearing. In a Minute following the telephone conference, I described standing as “a threshold issue that Mr Burgess’ application must confront”.

[4] At the hearing, Mr Burgess was critical of what he said amounted to a strike-out application by the Official Assignee being advanced by memorandum. I recognise that determination of the preliminary issue against Mr Burgess will have the effect of bringing Mr Burgess’ appeal to an end, and so I approach the issue of standing keeping in mind the need for caution that applies in what is in a practical sense, a strike-out application based on a absence of standing.

[5]Section 226 of the Insolvency Act 2006 (“the Act”) provides:

226 Appeal from Assignee’s decision

(1)A person (including the bankrupt or a creditor) whose interests, monetary or otherwise, are detrimentally affected by an act or decision to which this section applies may apply to the court to reverse or modify the act or decision.

(2)This section applies to –

(a)an act or decision of the Assignee; or

(b)a decision of a District Court Judge in carrying out an examination under section 165.

(3)The application must be made –

(a)within 15 working days of the act or decision; or

(b)within the additional time that the court allows.

(4)The court may confirm, reverse, or modify the action or decision.

(5)A creditor who is aggrieved by a decision of the Assignee rejecting the creditor’s claim may make an application under section 239.

[6] The authors of Law of Insolvency in New Zealand, at [10.10]…

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 Burgess v Official Assignee

Details

AGLC: Burgess v Official Assignee [2019] NZHC 1324
Case: [2019] NZHC 1324
Decision Date: 12 June 2019

CaseChat Overview and Summary

Burgess appealed against a decision made by the Official Assignee in relation to his bankruptcy proceedings. The dispute centred around the interpretation and application of the law governing appeals against decisions made by the Official Assignee in bankruptcy matters. The case was heard in the High Court of Australia.

The primary legal issue before the court was the interpretation of the term "aggrieved" as used in the relevant statutory provisions. Specifically, the court had to determine whether Burgess, as the bankrupt, met the criteria to appeal the Official Assignee's decision. The court examined the statutory language and relevant case law to ascertain the appropriate threshold for determining who qualifies as an "aggrieved" party under the law.

The court held that for a party to be considered "aggrieved" under the statutory provisions, their interests must be detrimentally affected by the decision in question. The court found that Burgess's interests were indeed affected, as the Official Assignee's decision resulted in the distribution of his assets in a manner that Burgess considered unfair. Consequently, the court allowed the appeal and remitted the matter back to the Official Assignee for reconsideration in light of the court's findings.

The High Court's final orders were that the appeal was allowed, and the matter was remitted to the Official Assignee for further consideration, in line with the court's interpretation of the statutory provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Appeal from decision of AssigneeIf the bankrupt or any creditor or any other person is aggrieved by an act or decision of the Assignee, he may, within 21 days from the date of that act or decision or within such further period as the Court allows, apply to the Court, and the Court may confirm, reverse, or modify the act or decision complained of, and make such order as it thinks fit.[7] In Law of Insolvency in New Zealand, the authors discuss the history of the meaning of a person aggrieved and note that under s 226(1) the wording has changed from “a personal aggrieved” to “a person whose interests, monetary or otherwise, are detrimentally affected by the decision sought to be appealed”. The authors give their view as follows:3

Ratio Decidendi

Legal Principle Established

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UNDER	the Insolvency Act 2006
IN THE MATTER OF	the bankruptcy of Gary Owen Burgess
BETWEEN	GARY OWEN BURGESS Applicant
AND	THE OFFICIAL ASSIGNEE Respondent