Gollan v Official Assignee - [2013] NZHC 2094

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2012-419-000646 [2013] NZHC 2094

BETWEEN
JAMES PATRICK GOLLAN

Applicant

AND

OFFICIAL ASSIGNEE Respondent

CIV 2012-419-001698

BETWEEN VERONICA PATRICIA GOLLAN Applicant

ANDOFFICIAL ASSIGNEE Respondent

Hearing: 15 August 2013

Appearances:

G Keene for the Applicants
G Caro for the Respondent

Judgment:

16 August 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
16.08.12 at 4:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

JAMES PATRICK GOLLAN v OFFICIAL ASSIGNEE [2013] NZHC 2094 [16 August 2013]

[1] These proceedings involve applications by Mr and Mrs Gollan to reverse decisions by the Official Assignee (the Assignee) in connection with their respective bankruptcies. The decisions were to refuse to assign causes of action under the Law Reform (Testamentary Promises) Act 1949 (The TPA claim). The application of Mrs Gollan also challenges the decision to refuse to assign a cause of action under the Family Protection Act 1955 (the FPA claim).

[2] Previously by judgment dated 20 July 2012 Associate Judge Faire dismissed an appeal by Mr Gollan against the decision of the Assignee not to take over and continue a claim against the estate of Mrs Gollan’s mother (Mrs Luders). Judge Faire made orders refusing to reverse the Assignee’s decision not to continue with the claim of Mr Gollan. The learned Judge however left open the question of whether or not Mr Gollan could assign the cause of action. That has led to the current applications being filed.

[3] Mrs Luders died on 28 July 2008.

[4] Mr Gollan was adjudicated a bankrupt on 19 March 2012. Mrs Gollan was adjudicated bankrupt on 5 May 2008 and she was discharged from bankruptcy in about May 2011. As a result of their adjudications their causes of action against Mrs Luders’ estate vested in the Assignee. 1

Mr Gollan’s application

[5] The grounds for the application include, inter alia:

(a) That in the course of refusing an assignment of the TPA claim the Assignee took into account irrelevant considerations because he required an indemnity against any award of costs if the testamentary promises claim failed; and because Mr Gollan had previously assigned the cause of action to a third party, Employment and
Business Services Limited (EBS).

1 Insolvency Act 2006, s 101.

(b) That the TPA claim does not lack merit and is not weak; and that the

Assignee will not be exposed to risk even if the claim fails.

(c) That there would be a benefit to creditors if the claim succeeded.

The claim by Mrs Gollan

[6] Mrs Gollan’s claim is very similar to that of her husband but also includes the FPA claim she has brought against her late mother’s estate. Mrs Luders’ Will bequeathed 4/11ths of her estate to Mrs Gollan, 4/11ths to her sister Mrs Managh, and
1/11ths to each of the three other siblings.

[7] The Assignee became aware in February 2010 that Mr and Mrs Gollan commenced TPA claims in the Family…

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 Gollan v Official Assignee

Details

AGLC: Gollan v Official Assignee [2013] NZHC 2094
Case: [2013] NZHC 2094
Decision Date: 16 August 2013

CaseChat Overview and Summary

These proceedings involve applications by Mr and Mrs Gollan to reverse decisions by the Official Assignee in connection with their respective bankruptcies. The decisions were to refuse to assign causes of action under the Law Reform (Testamentary Promises) Act 1949 (the TPA claim) and the Family Protection Act 1955 (the FPA claim). The applications arose from a previous appeal by Mr Gollan against the Assignee’s decision not to take over and continue a claim against the estate of Mrs Gollan’s mother, Mrs Luders. The Assignee refused to assign the claims because he believed the likelihood of success was too remote and that the financial benefit to the estate and its creditors would be negligible. The Gollans argue that the Assignee should have considered assigning the causes of action to them because they would provide evidence of the promise made by Mrs Luders to leave her house to them and that there would be a significant benefit to the estate and its creditors if they were successful.

The court had to decide whether the Assignee was correct in refusing to assign the causes of action to the Gollans. The court considered the merits of the claims, the value of the estate, and the potential benefit to the estate and its creditors. The court also had to consider whether the Gollans had standing to apply for the review of the Assignee’s decision.

The court found that the Assignee was not required to assign the causes of action to the Gollans. The court held that the Assignee was entitled to assess the likely outcome of the claims and decide whether to continue or discontinue them. The court found that the Gollans did not have standing to apply for the review of the Assignee’s decision because they had no remaining interest in the causes of action. The court also found that the Assignee was not obliged to assign the causes of action to the Gollans in the absence of a proper assessment of the strength of the claim and its likely result.

The applications for review of the Assignee’s decision refusing an assignment of the applicants' testamentary promises and family protection causes of action, are dismissed. Costs are reserved and will be fixed upon application.

Orders