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Goldstone v Goldstone

Goldstone v Goldstone

Case [2019] NZHC 1649 16 July 2019

Jurisdiction

Compensatory Damages

Unconscionable Conduct

Res Judicata

Specific Performance

Insolvency Law

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-152

[2019] NZHC 1649

UNDER the Insolvency Act 2006

IN THE MATTER

of an application for vesting orders

BETWEEN

ANDREA JEANETTE MARY GOLDSTONE

Applicant

AND

REECE CLIVE GOLDSTONE

Respondent

AND IN THE MATTER of an application under s 119(2) Insolvency Act 2006 to vest property

BETWEEN

REECE CLIVE GOLDSTONE

Applicant

AND

THE MINISTER OF FINANCE ON BEHALF OF THE CROWN

Respondent

AND

ANDREA JEANETTE MARY GOLDSTONE

Second Respondent

Hearing: 5 March 2019 (heard at Tauranga)

Appearances:

T Bartlett for A J M Goldstone M King for R C Goldstone

Judgment:

16 July 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 16 July 2019 at 5.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GOLDSTONE v GOLDSTONE [2019] NZHC 1649 [16 July 2019]

TABLE OF CONTENTS

Introduction [1]
The facts [6]

The applications [14]

The legislative scheme  [17]
A survey of cases under s 119  [22]
Re Shallish  [23]
Re Marlow  [24]
Re Hubball  [25]
Re Julius  [26]
Panther v Panther  [27]
The Fish Man  [30]

The relevant circumstances in an application under s 119 [41]

What does s119(3) permit the Court to do in this case?  [43]
Filling gaps in the legislation – implied powers  [45]
The central issue  [48]
The proceedings under the Property (Relationships) Act 1976  [49]
What the Court must decide in this case  [54]
What is the effect of the bankruptcy and the Assignee's disclaimer on the
status of the property as relationship property under the PRA?  [56] What, if any, jurisdiction would the Family Court have to make orders in respect of the property under the PRA if it is vested in Reece, or in Reece
and Andrea jointly.  [62]
What is the fairest outcome for the competing applications for vesting orders under the Insolvency Act?  [66]
Factors relevant to the fairness assessment  [67]
Matters not relevant to the fairness assessment  [69]
The factors to be weighed in the fairness assessment  [72]

Conclusion and orders [82]

Costs [84]

Introduction

[1] When a person is adjudicated bankrupt, all property belonging to or vested in them is vested in the Official Assignee and any rights in the property belonging to the bankrupt are extinguished.1 The property of a bankrupt that is unsaleable, or not readily saleable, or that may give rise to a liability to pay money or perform an onerous act may be determined by the Assignee to be “onerous property”.2

[2] The Assignee may disclaim onerous property,3 and within 10 days, give notice to every person whose rights are, to the Assignee's knowledge, affected by it.4 A disclaimer brings to an end, on and from the date of the disclaimer, the rights, interests, and liabilities of the Assignee and the bankrupt in relation to the property disclaimed,5 but it does not affect the rights, interests, or liabilities of any other person, except in so far as is necessary to release the…

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 Goldstone v Goldstone

Details

AGLC: Goldstone v Goldstone [2019] NZHC 1649
Case: [2019] NZHC 1649
Decision Date: 16 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Toogood J addressed competing applications for vesting orders in relation to a property that was the former family home of Andrea Jeanette Mary Goldstone and Reece Clive Goldstone, both former bankrupts who were married but are now divorced. The Official Assignee had disclaimed the property, which then vested in the Crown. Andrea applied for the property to be vested in her and Reece jointly, while Reece sought sole vesting in himself. The court had to determine the fairest outcome considering the Insolvency Act 2006 and the Property (Relationships) Act 1976. Toogood J concluded that the property should be vested in Reece solely, as his financial contributions since the separation had preserved the property's value and prevented a mortgagee sale, and joint vesting would be impractical without Family Court jurisdiction. The court dismissed Andrea's application and ordered the property to be vested in Reece subject to existing encumbrances.

Orders