Estate of Waller - [2025] NZHC 155

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-136

[2025] NZHC 155

UNDER Part 19 of the High Court Rules 2016

IN THE MATTER

of Part 6 of the Insolvency Act 2006

AND

IN THE MATTER

of an application by the Commissioner of Inland Revenue for an order appointing the Official Assignee as administrator of the

insolvent estate of KEITH ALEXANDER WALLER

THE COMMISSIONER OF INLAND REVENUE

Applicant

Hearing: On the papers

Counsel:

D J Tasker for Applicant

Judgment:

13 February 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 13 February 2025 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RE ESTATE OF KEITH WALLER [2025] NZHC 155 [13 February 2025]

[1] There is before the Court an application by the Commissioner of Inland Revenue seeking orders:

(a)for leave to commence this proceeding by originating application;

(b)for directions as to service;

(c)that the Official Assignee be appointed to administer the estate of Keith Alexander Waller, deceased; and

(d)that the applicant’s costs and disbursements of and incidental to the application be paid out of the deceased’s estate.

Background

[2] Keith Alexander Waller died on 2 December 2020. At the time of his death his partner was Siobhan Matich.

[3] Mr Waller died owing the Commissioner over $1 million for unpaid taxes. I understand that Ms Matich paid various expenses in respect to Mr Waller’s funeral and burial.

[4] Mr Waller owned a property at 15 Akeake Crescent, Karikari Peninsula valued at approximately $100,000. Ms Matich has paid rates in respect of that property.

[5] Mr Waller’s estate appears to be grossly insolvent. No application has been made by Ms Matich or anyone else to administer the estate. Ms Matich has confirmed that she would consent to an application by the Commissioner that the Official Assignee be appointed to administer Mr Waller’s estate under pt 6 of the Insolvency Act 2006.

[6] The Commissioner feels it has no option but to attempt to expedite matters and apply for the Official Assignee to be appointed as the administrator. The Akeake Crescent property needs to be sold to reimburse Ms Matich for the expenses she has

paid on behalf of the estate and any other claims, and to recover at least some of what is owing to the Commissioner in respect of Mr Waller’s tax liability.

[7] This is not an application which may be commenced under pt 19 of the High Court Rules 2016 by way of originating application as of right. However, under r 19.5 the Court may, in the interests of justice, permit such proceeding to be commenced by originating application. The interests of justice means the Court must secure the just, expedient and inexpensive determination of the proceedings when considering an application under r 19.5.1 The Court’s permission may be sought without notice, as has occurred in this case. It is clearly in the interests of justice that this…

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.

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Details

Case: [2025] NZHC 155
Decision Date: 13 February 2025

CaseChat Overview and Summary

The case before the court was an application by the Commissioner of Inland Revenue for the appointment of the Official Assignee as the administrator of the insolvent estate of Keith Alexander Waller. Keith Waller, who died on 2 December 2020, had significant outstanding debts to the Commissioner, totaling over $1 million. The court was tasked with determining whether it was appropriate to allow the Commissioner to commence proceedings by way of an originating application, to appoint the Official Assignee as the administrator of the estate, and to order the payment of the Commissioner's costs and disbursements from Waller's estate.

The court first considered whether it was in the interests of justice to allow the proceeding to be commenced by an originating application. The court noted that the proceeding involved statutory provisions, there was no need for particularised pleadings, the issues were clear and not in dispute, and the only other person with an interest in the application consented to it. Given these factors, the court found it was in the interests of justice to allow the proceeding to be commenced by an originating application. The court also considered the provisions of the Insolvency Act 2006, which allow for a creditor to apply for the appointment of an administrator if certain conditions are met. The court found that the Commissioner's application met these conditions, and that the Official Assignee should be appointed as the administrator of Waller's estate.

The court concluded that it was appropriate to appoint the Official Assignee as the administrator of Waller's estate because Waller had been deceased for four years, the estate was insolvent, no one else was willing to administer the estate, and it was in the public interest to do so. The court ordered the appointment of the Official Assignee as the administrator and that the Commissioner's costs and disbursements be paid out of Waller's estate.

The court's final orders were that the Official Assignee Northern Region be appointed as the administrator of the estate of Keith Alexander Waller, and that the Commissioner of Inland Revenue was entitled to costs of the proceeding on a 2B basis and reasonable disbursements, such costs and disbursements to be paid out of Mr Waller’s estate.

Orders