Dayle Timber Limited v Withers

[2016] NZHC 1977

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1510 [2016] NZHC 1977

BETWEEN

DAYLE TIMBER LIMITED

Judgment Creditor

AND

STEPHEN WITHERS Judgment Debtor

Hearing:	19 August 2016
Appearances:	Mr Jones for Applicant No appearance for Judgment Debtor
Judgment:	19 August 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

DAYLE TIMBER LIMITED v WITHERS [2016] NZHC 1977 [19 August 2016]

[1]      The Official Assignee applies for an order under ss 147 and 106 of the

Insolvency Act 2006 requiring the bankrupt to contribute to his debts.

[2]      The  application  names  as  second  respondent  the  employer  of  the  first respondent.  The second respondent would be required to give effect to the judgment by    making    deductions    from    the    bankrupt’s    salary.        The    bankrupt, Mr Withers, is employed as a lecturer by the second respondent.  In his estate there was one unsecured claim for $8,741.02.   There is to be added to that debt a preferential claim for the Official Assignee’s costs and disbursements which are

$3,836 in the round, the bankrupt owes approximately $12,000.

[3]      The order which the Official Assignee seeks is that:

(a)       The first respondent (“bankrupt”) pay $165 per week (or such lesser amount  as  the  assignee  may  require  from  time  to  time)  to  the assignee as a contribution towards his debts from the date of the first payment ordered by the court [until discharged from bankruptcy].

[4]      Section 147 provides that if required by the assignee the bankrupt must pay a contribution towards his/her debts and the Court may on the application of the Official Assignee order the bankrupt to pay such amounts: Section 147(4).

[5]      The Official Assignee calculates that the bankrupt, based on his statement of affairs, has a weekly income of $910 net after tax.   Mr Withers apparently has a partner but that partner does not appear to be dependent upon him financially, having his/her own income.  There are no other dependents or relatives for whom allowance for maintenance needs to be made.

[6]      The Official Assignee has given evidence of carrying out a calculation of the surplus available to the bankrupt and that has resulted in a figure of $314 per week (rounded).

[7]      The Official Assignee has given evidence that he has sought input from the bankrupt concerning possible contribution to payment of debts.  Unfortunately, the

Official Assignee says, the bankrupt has not responded to requests to cooperate with regard to fixing a sum for contribution to debts.

[8]      I have no reason to believe that, in the absence of any adverse response from the bankrupt, that the calculation of the surplus which the Official Assignee has carried out is other than accurate and reasonable.   The surplus available to the bankrupt is more than sufficient to cover a weekly contribution to his debts in the sum of $165 per week which is the approximate amount sought.   In all the circumstances it would seem reasonable that an order for contribution be fixed at that level.

[9]      There will therefore be an order that the bankrupt is to pay to the Official

Assignee by way of contribution to his debts pursuant to s 147 of the Insolvency Act

2006, the sum $165 per week with payments to be made fortnightly of $330 with the first payment to be due on 26 August 2016 and thereafter fortnightly.  In making this order I am satisfied that there is an adequate margin between the outgoings of the bankrupt and his income sufficient to cover any unexpected contingencies and to allow for accumulation of a small surplus per week.

[10]     The order is to continue in effect until such time as the bankrupt is discharged from bankruptcy and the costs of this application and any arrears which may have arisen up to the date of discharge have been recovered by the Official Assignee.

[11]     In regard to the costs against the first respondent I direct that he is to pay costs on 2B basis together with disbursements to be fixed by the Registrar.

[12]     The second respondent is to pay the sum of $165 per week / $330 / fortnight (or such less amount as the Official Assignee may specify in writing from time to time) to the Assignee on behalf of the bankrupt as a first charge on any monies that are due or become due or payable to the bankrupt from the date of first payment ordered by the court until the expiry of the order in the circumstances set out in relation to the order that I have made against the first respondent.

J.P. Doogue

Associate Judge