FM Custodians Limited v Serepisos HC Wellington CIV-2011-485-279

[2011] NZHC 1170

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-279

IN THE MATTER OF     the bankruptcy of ELEFTARIOUS SEREPISOS

AND IN THE MATTER OF an application for access to Court documents between The Dominion Post as Applicant and The Official Assignee as Respondent

BETWEEN  FM CUSTODIANS LIMITED Judgment Creditor

Hearing:         30 September 2011 (Heard at Wellington)

Judgment:      30 September 2011   

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Port Nicholson Chambers, PO Box 5817, Lambton Quay

Izard Weston, Lawyers, PO Box 5348, Wellington

Thomas Dewar Sziranyi Letts, Solicitors, PO Box 31-240, Lower Hutt, Wellington

FM CUSTODIANS LIMITED v E SEREPISOS HC WN CIV-2011-485-279 30 September 2011

[1]      The Dominion Post newspaper seeks access to “All documents on the Court file including the judgment debtor’s Part 5 proposal and the affidavit of Daniel Mark Hughes sworn 26 September 2011” in this proceeding.

[2]      This matter follows an oral judgment issued by me on 26 September 2011 adjudicating the judgment debtor Mr Serepisos bankrupt.

[3]      Counsel for the Dominion Post newspaper, counsel for the Official Assignee, counsel for South Canterbury Finance Limited (in receivership), effectively the petitioning creditor in the bankruptcy application and counsel for Equitable Mortgages Limited, a creditor in support, have all filed memoranda in this matter.

[4]      Applications for access to Court documents are generally dealt with under

Part 3 Sub-Part 2 of the High Court Rules.

[5]      Rule 3.16 sets out matters to be taken into account in considering such an application. These include:

(a)       The orderly and fair administration of justice.

(b)The  protection  of  confidentiality  and  privacy  interests  and  any privilege held by or available to any person.

(c)       The principle of open justice namely encouraging fair and accurate reporting of and comment on Court hearings and decisions.

(d)      The freedom to seek, receive and impart information.

(e)       Whether a document to which the application or request relates is subject to any r 3.12 restriction.

(f)       Any other matter the Judge thinks fit.

[6]      The Official Assignee, supported by South Canterbury Finance Limited (in receivership)  and  Equitable  Mortgages  Limited,  notes  that  there  are  certain

documents on this file which relate to third parties and are at least in part commercially sensitive.   In particular these documents represent exhibits to an affidavit of Mr Serepisos dated 26 August 2011 noted as Exhibits “B” and “C” and a document attached as Schedule “A” to Mr Serepisos’ Part 5 creditors’ proposal in this proceeding, a proposal which did not proceed.

[7]      At  the outset,  it seems  all  other documents  on  this  file can  be properly disclosed, and an order to this effect is to follow.

[8]      The  nature  of  the  present  application  is  that  it  is  a  request  by  a  local Metropolitan Newspaper for access to the Court bankruptcy file of Mr Serepisos, a high profile local identity declared bankrupt earlier this week.   At that stage, Mr Serepisos owed over $200,000,000.00 to a large number of creditors.   These are understood to include the Commissioner of Inland Revenue for unpaid taxes, local authorities for unpaid rates and at least one finance company, South Canterbury Finance Limited (in receivership), which is subject to the Government Guarantee Scheme.

[9]      It is clear that any losses to these creditors would have quite some significant public impact.

[10]     Before me today, counsel referred to various decisions of this Court in which orders permitting inspection of Court files in favour of accredited media were made.

[11]     In my view the interests of open justice require that access to this file as sought by the Dominion Post in its application should be granted, but subject to one condition.

[12]     This  condition  is  that  part  of  the  documentation  in  the  affidavit  of  Mr Serepisos dated 26 August 2011, being exhibits “B” and “C”, and the document attached as Schedule “A” to the creditors’ proposal of Mr Serepisos dated 26 August

2011 under Part 5 Sub-Part 2 of the Insolvency Act 2006 are not to be disclosed.

[13]     Imposition of this condition, however, is on the basis as discussed and agreed with Mr Chisnall for the Official Assignee this morning, that, first, the “Schedule of Properties  for  Terry  Serepisos”  noted  as  Schedule  “B”  to  his  26 August  2011 affidavit is to be made available by Mr Chisnall to the Dominion Post and its counsel Mr Stewart with the last two columns of this schedule (headed “Total Market Value” and “Terry Serepisos share of value”) properly redacted, and in addition, secondly, the document noted as Schedule “A” to the 26 August 2011 Creditors’ Proposal of Mr Serepisos is also to be made available by Mr Chisnall on a similar basis with the last column of this document headed “Total Market Value” of the properties in question properly redacted.

[14]     So far as the further exhibit “C” to the affidavit of Mr Serepisos dated 26

August 2011 is concerned, in my view this contains commercially sensitive information regarding mortgage indebtedness relating to various properties, it affects third parties, and is not to be made available to the Dominion Post.

[15]     In conclusion, the application by the Dominion Post for access to this Court file succeeds for the reasons outlined above, subject to an order which I now make prohibiting searching and obtaining copies of the documentation in the affidavit of Mr Serepisos dated 26 August 2011 being exhibits “B” and “C” and the document being attached Schedule “A” to the proposal of Mr Serepisos dated 26 August 2011 as a creditors’ proposal under Part 5 Sub-Part 2 of the Insolvency Act 2006.

[16]     If costs are in issue here they are reserved.

‘Associate Judge D.I. Gendall’