Fawcett v Official Assignee - [2016] NZHC 196

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-000587 [2016] NZHC 196

BETWEEN
CHRISTOPHER LOUIS FAWCETT

Applicant

AND

THE OFFICIAL ASSIGNEE First Respondent

PETER MATTHEW GRANVILLE Second Respondent

Hearing: 10 December 2015

Appearances:

Mr Fawcett applicant in person
Ms Cameron for the Official Assignee
Ms R Scott for Second Respondent

Judgment:

17 February 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
17.02.16 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FAWCETT v THE OFFICIAL ASSIGNEE [2016] NZHC 196 [17 February 2016]

Introduction

[1] This is an application for discovery of certain documents. It is related to claims Mr Fawcett has made about the Official Assignee’s (“OA”) administration of his estate in bankruptcy. He alleges that the OA has made various errors which mean that the bankruptcy should be annulled. Specifically, Mr Fawcett alleges that various expenses and charges which the OA levied against his estate ought not to have been deducted out of the estate. If such an approach is given effect to, Mr Fawcett claims that there would not be an overall deficiency when liabilities are deducted from the assets available to meet them, that the estate has a positive balance of assets to meet debtor’s claims, and that therefore his bankruptcy was unjustified.

Background

[2] Mr Fawcett was adjudicated bankrupt on 14 September 2010 following his involvement in failed property development transactions. The adjudication followed the entry of summary judgment against him for approximately $1.25 million, plus costs, on 17 March 2010.

[3] Considerable litigation has resulted, including an application to set aside legal transactions pursuant to which properties were transferred to trustee companies incorporated by Mr Fawcett, JEC No. 2 Ltd and JEC No. 3 Ltd. Orders setting aside transactions were made by Associate Judge Faire on 5 November 2012 in regard to those matters. Those transactions involved two Court proceedings in which the OA was the applicant.1

[4] There was a further set of proceedings between the parties in which the OA was the plaintiff which came about in circumstances which I will now briefly describe. Mr Fawcett and Mr Granville were sued as the trustees of a trust which the OA alleged had become indebted to Mr Fawcett. Mr Fawcett had allegedly transferred properties to the trustees and taken a debt back. Mr Fawcett’s position was that that debt had been forgiven. In any event, those proceedings, which the
parties referred to as CIV-2011-419-0028, were eventually discontinued. While no

1 JEC No 2 Ltd v Official Assignee at Hamilton [2013] NZHC 1352 - CIV-2012-419-907 and CIV-
2007-419-904.

judgment was entered, it was common ground that a settlement took place which involved the trustees transferring to the OA certain properties which then became available as assets in the bankrupt estate. Peters J made freezing orders in respect of two further properties on 31 May 2013.

[5] The circumstances of Mr Fawcett’s bankruptcy have been before the Court on numerous occasions.…

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 Fawcett v Official Assignee

Details

AGLC: Fawcett v Official Assignee [2016] NZHC 196
Case: [2016] NZHC 196
Decision Date: 17 February 2016

CaseChat Overview and Summary

Fawcett v Official Assignee [2016] NZHC 196 is a case where the applicant, Mr Fawcett, sought to obtain additional disclosure of documents held by the Official Assignee (OA) in relation to the administration of his bankrupt estate. Mr Fawcett alleged that the OA had made various errors in administering the estate, which would have led to a positive balance of assets to meet debtor’s claims and, therefore, his bankruptcy was unjustified. The OA opposed the application, claiming that Mr Fawcett was not detrimentally affected by the withheld information. The court considered whether Mr Fawcett had an entitlement to review all of the documentation which had been generated during the administration of the estate. The court concluded that Mr Fawcett had certain statutory entitlements to review documents, but the documents that Mr Fawcett was seeking went beyond the extent of that section or had already been provided. The court did not consider that Mr Fawcett had an entitlement to review the cashbook entries if they had not already been provided to him. The court further concluded that Mr Fawcett did not have an entitlement to individual invoices which the legal advisors to the OA had rendered to him. The court did not consider that Mr Fawcett had an entitlement to receive copies of the detailed invoices that had been rendered by specific contractors during the course of the administration of the estate.

Orders