Hampton v Minter Ellison Rudd Watts - [2020] NZSC 123

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 72/2020
[2020] NZSC 123

BETWEEN	DAVID JOHN HAMPTON Applicant
AND	MINTERELLISONRUDDWATTS First Respondent
AND	OFFICIAL ASSIGNEE Second Respondent
AND	COMMISSIONER OF INLAND REVENUE Third Respondent

Court:	Glazebrook, O’Regan and Williams JJ
Counsel:	Applicant in person P H Courtney and O L Wilkinson for Second Respondent S M Kinsler for Third Respondent
Judgment:	13 November 2020

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
BThe applicant must pay costs of $1,250 to each of the second and third respondents.

____________________________________________________________________

REASONS

Introduction

The applicant, Mr Hampton, applies for leave to appeal the Court of Appeal’s decision dismissing two appeals; the first in which Mr Hampton sought a stay of adjudication of bankruptcy, and the second in which he challenged a High Court order imposing conditions on his discharge from bankruptcy.[1]

Extension of time

[1]Hampton v Minter Ellison Rudd Watts [2020] NZCA 291, (2020) 29 NZTC ¶24-069 (Clifford, Simon France and Lang JJ) [CA judgment].

Mr Hampton’s notice of application was filed one day out of time. He seeks an extension of time. The Official Assignee abides the decision of the Court in this respect. The Commissioner of Inland Revenue does not oppose an extension. The extension is granted.

Background

It is necessary to rehearse at more length than would be usual some of the long‑running litigation background to this application in order to place it in proper context.
Mr Hampton and his associated entities (the Chesterfield entities) have been engaged in a dispute with the Commissioner of Inland Revenue over their tax liability since the 1990s. In 2008, Mr Hampton commenced proceedings against the Commissioner, the Attorney‑General, a solicitor and 20 departmental officers. He claimed damages for misfeasance in public office (the misfeasance claim). In March 2013, the Court of Appeal stayed that proceeding pending the filing of a statement of claim settled by a lawyer who had reviewed the available evidence.[2]
[2]Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [116] and [119].
In June 2013, Mr Hampton was adjudicated bankrupt. The first respondent, MinterEllisonRuddWatts (MERW), was the petitioning creditor. Mr Hampton filed a statement of affairs a year later in June 2014.[3] He could therefore be discharged from bankruptcy on the expiry of three years from that date unless the Official Assignee objected or a creditor were granted leave by the court to object.[4] In the event of such objection, the public examination procedures in ss 173–181 of the Insolvency Act 2006 are activated.[5] In Mr Hampton’s case, the Official Assignee lodged an objection and the Commissioner of Inland Revenue also applied for leave to object to the discharge. The latter also sought conditions on discharge in the public interest. Mr Hampton cross‑applied to be discharged unconditionally.
[3]Insolvency Act 2006, s 67(1).
[4]Sections 290 and 292.
[5]Section 295(1).
Venning J heard the examination and the various applications in July 2018.[6]…

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.

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Details

Case: [2020] NZSC 123
Decision Date: 13 November 2020

CaseChat Overview and Summary

David John Hampton applied for leave to appeal the Court of Appeal's decision dismissing two appeals; the first in which he sought a stay of adjudication of bankruptcy, and the second in which he challenged a High Court order imposing conditions on his discharge from bankruptcy. The Court of Appeal held that there was no jurisdiction under rule 17.29 to stay the bankruptcy adjudication and that it was appropriate to impose conditions on Mr Hampton’s discharge. Mr Hampton contends that he is a “liable party” under rule 17.29 because he continues to be a judgment debtor and a liable party in relation to his creditors until discharged from bankruptcy and that the adjudication is an “enforcement order” under the rule because it is enforceable by the Official Assignee.

The Court was satisfied that the applicant’s prospects of succeeding in his arguments were insufficient either to give rise to any issue of general or public importance, or to meet the heightened standard for risk of miscarriage in relation to civil appeals. The Court saw no reason to depart from the Court of Appeal’s view that rule 17.29 does not apply to bankruptcy adjudications, which are dealt with under Part 24 of the High Court Rules. The Court was also satisfied that there was no issue of general or public importance nor any risk of miscarriage with respect to the appeal against Mr Hampton’s conditions of discharge. The application for leave to appeal is dismissed. The applicant must pay costs of $1,250 to each of the second and third respondents.

Orders