This judgment was delivered by me on 29 January 2013 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar

Solicitors:
Meredith Connell, P O Box 2213 Auckland
Email: gareth.neil@meredithconnell.co.nz

DARBY V OFFICIAL ASSIGNEE HC AK CIV-2007-404-3034 [29 January 2013]

[1] Patrick Antony Darby was adjudicated bankrupt on 15 February 2008. Ordinarily he would be entitled to be discharged from his bankruptcy after three years. However, the Official Assignee lodged an objection to his discharge. This is the decision on Mr Darby’s application for discharge.

[2] The decision comes far too long after the hearing. I apologise to the parties for the delay in giving it.

[3] The grounds for Mr Darby’s application include:

(a) The Official Assignee allegedly delayed in arranging any public examination concerning his discharge;

(b) The Official Assignee allegedly failed to file a report under s 109(2)

of the Insolvency Act 1967;

(c) There were no unanswered questions during the bankruptcy;

(d) There is no benefit to the creditors in prolonging the bankruptcy;

(e) No creditor has objected to Mr Darby’s discharge from bankruptcy;

(f) No creditor has given notice of any intended opposition under s 109(4) to Mr Darby’s discharge;

(g)The effect of the delays by the Official Assignee has been to prolong the bankruptcy unjustifiably;

(h)Mr Darby is a pensioner in his sixties, requiring constant medical attention.

[4] The Official Assignee’s primary concerns are:

(a) Mr Darby is alleged to prey on the more vulnerable members of society and use them for his personal gain;

(b)He is said to have been deliberately untruthful to the Official Assignee in both his first and his second bankruptcies;

(c) Mr Darby is alleged to display an absence of commercial morality in the way he conducts his business;

(d)Mr Darby’s alleged disregard for standard commercial practices continued into his bankruptcy, when he continued to conduct his own business in breach of restrictions under the Insolvency Act 1967;

(e) Mr Darby’s is alleged to have used an alias while conducting business

during his bankruptcy.

(f) Mr Darby has two prior convictions for fraud;

(g)Mr Darby has prior convictions under the Companies Act 1993 and the Financial Reporting Act 1993 in respect of his management of Hillcrest Services Limited;

(h)Mr Darby allegedly lacks remorse for the loss he has caused his creditors;

(i)Mr Darby has allegedly taken steps to hide assets from the Official Assignee and place assets out of the reach of liquidators and receivers of companies connected to Mr Darby.

[5] Mr Darby was bankrupted under the Insolvency Act 1967. The petition for his adjudication was filed before the…

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 Darby v Official Assignee

Details

AGLC: Darby v Official Assignee [2013] NZHC 22
Case: [2013] NZHC 22
Decision Date: 29 January 2013

CaseChat Overview and Summary

The matter before the court was an application by Mr Darby for his discharge from bankruptcy under s 108 of the Insolvency Act 1967. The Official Assignee objected to the discharge under s 107(3). The Official Assignee had filed a report under s 109 and Mr Darby was publicly examined. The Official Assignee was entitled to object to the discharge and the Official Assignee’s report was sufficient evidence in support of the objection. Mr Darby’s misconduct, particularly after his adjudication, justified extending his bankruptcy beyond the standard three years. The Official Assignee submitted that Mr Darby should not be discharged for a further three years, and the court accepted that submission. Mr Darby’s discharge will not be subject to any conditions and will take effect on 14 February 2014.

Orders