Cooper v Davison - [2024] NZHC 158

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1542

[2024] NZHC 158

UNDER the Insolvency (Cross Border) Act 2006, Part 19 of the High Court Rules 2016 and High Court Rule 24.56

IN THE MATTER OF

the bankruptcy of TERRY ALEXANDER DAVISON

BETWEEN

NICHOLAS DAVID COOPER

as Trustee in Bankruptcy of
TERRY ALEXANDER DAVISON
Applicant

AND

TERRY ALEXANDER DAVISON

Respondent

Hearing: 11 December 2023

Appearances:

J S Langston for the Applicant

No appearance for the Respondent

Judgment:

13 February 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Recognition of foreign proceedings]

This judgment was delivered by me on 13 February 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Shieff Angland (Kalev Crossland/J S Langston), Auckland, for the Applicant

NICHOLAS DAVID COOPER v TERRY ALEXANDER DAVISON [2024] NZHC 158 [13 February 2024]

Introduction

[1] Mr Nicholas Cooper (Mr Cooper), as trustee in the bankruptcy of Mr Terry Davison (Mr Davison), seeks recognition of Mr Davison’s Australian bankruptcy as a foreign main proceeding.

Background

[2] On 31 May 2019, the Federal Circuit Court of Australia at Adelaide made a sequestration order against Mr Davison (the Sequestration Order).1 On the same day Mr Cooper was appointed trustee of Mr Davison’s bankrupt estate.

[3] On 1 September 2022, Mr Cooper filed an originating application to have that judgment recognised as a foreign main proceeding in accordance with art 15 of sch 1 of the Insolvency (Cross-border) Act 2006 and r 24.56 of the High Court Rules 2016.

[4] On 20 August 2023, in accordance with Associate Judge Brittain’s 1 August 2023 order for substituted service,2 service of that originating application was effectuated on Mr Davison.3 He has filed nothing in response to this proceeding and therefore Mr Cooper’s application proceeds unopposed.

Mr Cooper’s application for recognition of foreign proceeding

[5]Mr Cooper seeks orders:4

a. Recognising the Australian bankruptcy of Terry Alexander Davison (the respondent), arising out of a sequestration order made in the Federal Circuit Court of Australia at Adelaide on 31 May 2019, as a foreign main proceeding;

b. Entrusting the administration or realisation of the respondent’s New Zealand assets to the Official Assignee for the Central Region (Anthony Pullan);

1      CCC Financial Solutions No 3 Pty Ltd v Davison FCCA Adelaide ADG89/2019, 31 May 2019 (Sequestration Order).
2      Cooper v Davison HC Auckland CIV-2022-404-1542, 1 August 2023 (Minute of Associate Judge Brittain) at [3].
3      Affidavit of service of Robert Walter Foster dated 8 September 2023.
4 Originating application for recognition of foreign proceeding dated 1 September 2022 at [1].

c. Leave for the applicant to apply to the Court in the event that further orders pursuant to Article 21(1) of Schedule 1 to the Insolvency (Cross- border) Act 2006 are required to discharge the applicant’s duties; and

d. The respondent pay the costs of and incidental to this application.

[6]The grounds on which the orders are sought are:5

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 Cooper v Davison

Details

AGLC: Cooper v Davison [2024] NZHC 158
Case: [2024] NZHC 158
Decision Date: 13 February 2024

CaseChat Overview and Summary

The case of Cooper v Davison, adjudicated by Associate Judge C B Taylor in the High Court of New Zealand, Auckland Registry, involved a legal dispute regarding the recognition of a foreign bankruptcy proceeding. Nicholas Cooper, acting as the trustee in bankruptcy of Terry Alexander Davison, sought to have Mr. Davison’s Australian bankruptcy recognised as a foreign main proceeding. The case aimed to facilitate the administration of Mr. Davison’s New Zealand assets, including a vehicle and a share in Māori freehold land, in accordance with the Insolvency (Cross-Border) Act 2006. The primary legal issue was whether the Australian bankruptcy could be recognised as a foreign proceeding in New Zealand, enabling the trustee to manage Mr. Davison’s assets located in New Zealand.

The court examined the criteria for recognising a foreign proceeding under the Act, which includes the necessity for the proceeding to be a collective judicial or administrative process in a foreign state, arising from insolvency laws, where the debtor’s assets and affairs are under the control or supervision of a foreign court. The court found that Mr. Davison’s Australian bankruptcy satisfied these criteria. Additionally, the court considered whether the Australian proceeding qualified as a foreign main proceeding, which it did, as Mr. Davison had his centre of main interests in Australia at the time of the bankruptcy. Furthermore, the court noted the absence of other foreign proceedings concerning Mr. Davison, fulfilling another requirement of the Act. The application was supported by a sealed order from the Australian court confirming the bankruptcy and the appointment of Mr. Cooper as the trustee.

In conclusion, the court granted the application for recognition of the Australian bankruptcy as a foreign main proceeding. It entrusted the administration of Mr. Davison’s New Zealand assets to the Official Assignee for the Central Region, Anthony Pullan. The court also granted leave for the applicant to apply for further orders if necessary to discharge his duties. The costs of the application were reserved pending further direction.

Orders