Fawcett v Official Assignee

[2016] NZHC 1272

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-000587 [2016] NZHC 1272

BETWEEN

CHRISTOPHER LOUIS FAWCETT

Applicant

AND

THE OFFICIAL ASSIGNEE First Respondent

PETER MATTHEW GRANVILLE Second Respondent

Hearing:	4 May 2016
Appearances:	Applicant in person Mr P Cornege for Official Assignee Ms Scott and Mr Savage for Mr Granville
Judgment:	14 June 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

14. 06.16 at 4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FAWCETT v THE OFFICIAL ASSIGNEE & ANOR [2016] NZHC 1272 [14 June 2016]

[1]       Mr Fawcett is the applicant in this proceeding.  He is a discharged bankrupt. He has made a number of criticisms of the way in which the Official Assignee administered his bankrupt estate.  One of the complaints that he has is that a debt which was paid out of the estate to a proving creditor, Mr Granville, ought not to have been paid.  He seeks an order reversing the decision of the Official Assignee.

[2]       The debt which Mr Granville paid was in the amount of $42,508.59 which payment was made to solicitors acting for the Thames-Coromandel District Council on 13 July 2009.  The circumstances in which Mr Granville came to make payment are set out below.

[3]       Much  of  the  factual  background  to  the  claim  is  not  in  dispute.   While Mr  Fawcett  made  a  number  of  references  to  what  the  “evidence”  in  the  case suggested was the appropriate outcome, the issue is more one of analysing the legal nature of the orders which were made in the District Court, the legal consequences of Mr Granville paying the judgment from the District Court and the rights that are recognised at law and equity to exist between a trustee and the trust estate out of which he/she is entitled to be indemnified.   A further potential question that may need to be considered is what rights one trustee has to be indemnified by another.

The background to the claim

[4]      Counsel for Mr Granville summarised the position as follows:

Peter Granville is a Chartered Accountant, practising in Hamilton, for over thirty years. During the course of his professional duties as Mr Fawcett’s accountant, Mr Granville was appointed as a trustee to the CL Fawcett Family Trust.1

Mr Granville’s claim in the bankrupt estate flowed from a single event. Thames District Council [sic] issued proceedings against the CL Fawcett Trust. In brief, the facts of the case were:2

1      Mr Granville was described as having a relatively passive role in the trust, an analysis that Mr

Fawcett did not disagree with.

2     Thames-Coromandel District Council v Fawcett DC Hamilton CIV-2008-019-655, 16 December

2008.

(a)       The trust undertook property development at Tairua, obtaining a building consent to construct a pedestrian footbridge over Graeme’s [sic] Creek at Tairua, which was not constructed in accordance with the  approved  building consent and  did  not comply  with  the  NZ Building Code relating to structure;

(b)      Thames-Coromandel District Council…