Hampton v Official Assignee - [2015] NZCA 264

IN THE COURT OF APPEAL OF NEW ZEALAND

CA423/2014
[2015] NZCA 264

BETWEEN

DAVID JOHN HAMPTON
Applicant

AND

THE OFFICIAL ASSIGNEE
First Respondent

THE COMMISSIONER OF INLAND REVENUE
Second Respondent

MINTER ELLISON RUDD WATTS
Third Respondents

Court:

Stevens, White and Cooper JJ

Counsel:

Applicant in person
G E Slevin for First Respondent
S M Kinsler for Second Respondent
D P MacKenzie for Third Respondents

Judgment:

(On the papers)

22 June 2015 at 2 pm

JUDGMENT OF THE COURT

The application is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

The applicant, David John Hampton, was adjudicated bankrupt on 5 June 2013. He applied for annulment of his bankruptcy under s 309(1)(a) and (c) of the Insolvency Act 2006 (the Act). By a judgment dated 26 June 2014, Associate Judge Matthews dismissed the application.[1]
[1]Hampton v The Official Assignee [2014] NZHC 1458 [decision under appeal].
Mr Hampton has filed a notice of appeal against that judgment, but it was filed one day late. He now seeks an extension of time for appealing. The first respondent, the Official Assignee, abides the decision of the Court on the application, but the application is opposed by counsel for the second and third respondents, the Commissioner of Inland Revenue and Minter Ellison Rudd Watts (Minter Ellison) respectively. In both cases, a substantial ground of opposition is that the appeal lacks merit.
Although formally abiding the decision of the Court, Mr Slevin has filed a memorandum on behalf of the Official Assignee in which he states that the administration of the applicant’s bankrupt estate has been delayed by the filing of the notice of appeal and the present application. That delay is said to compound the effects of his two earlier unsuccessful applications for annulment, which caused the Official Assignee to defer taking steps that would otherwise have been taken to enforce Mr Hampton’s obligations under the Act. Mr Slevin claims that Mr Hampton has been dilatory in providing information required under the Act.
Mr Hampton disputes the latter claim and asserts that he has cooperated fully with the Official Assignee to the extent that work commitments in Northland requiring him to be absent from Christchurch have allowed.
The second respondent also complains that the existence of the intended appeal is being used by Mr Hampton to defer the progress of matters in the High Court, including debt recovery proceedings and applications to strike out various claims for malicious prosecution and misfeasance in public office brought by the applicant and related entities against the Commissioner of Inland Revenue and her employees.

Background

The third respondents had obtained a judgment against the applicant on 11 February 2010 for a total amount including interest and costs of over $220,900.[2] They secured a charging order over a fund, from which they received payment of $176,553.86 in December 2012.[3] The balance of the judgment debt remained unpaid, and a bankruptcy notice was served. An application by Mr Hampton to set aside the notice was unsuccessful.[4] The notice…

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 Hampton v Official Assignee

Details

AGLC: Hampton v Official Assignee [2015] NZCA 264
Case: [2015] NZCA 264
Decision Date: 22 June 2015 at 2 pm

CaseChat Overview and Summary

The applicant, David John Hampton, sought an extension of time for appealing a decision of the High Court to dismiss an application for annulment of his bankruptcy. The appeal was dismissed because the Court found that it was unlikely to succeed. The High Court had dismissed an application for annulment of the applicant's bankruptcy under the Insolvency Act 2006. The applicant sought an extension of time for appealing the decision of the High Court, but the application was filed one day late. The application was opposed by the Official Assignee, the Commissioner of Inland Revenue and Minter Ellison Rudd Watts. The Official Assignee abided the decision of the Court, while the Commissioner and Minter Ellison opposed the application on the basis that the appeal lacked merit. The Court found that the appeal was unlikely to succeed. The applicant had been adjudicated bankrupt on 5 June 2014. His application for annulment of the bankruptcy was dismissed by the High Court on 26 June 2014. The applicant filed a notice of appeal on 25 July 2014, one day after the time for doing so had expired. The Court found that the appeal was unlikely to succeed because the applicant had been adjudicated bankrupt in 2012 and there was a balance owing of at least $44,395 as at the date of the order. The Court found that the receipt of $91,000 by the applicant on the sale of a property did not constitute a substantial change in his financial circumstances since the date of adjudication. The Court concluded that the appeal would have no prospect of success and dismissed the application for an extension of time.

Orders