Havenleigh Global Services Limited v Henderson - [2017] NZHC 946

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2017] NZHC 946

IN THE MATTER of the Insolvency Act 2006

IN THE MATTER

of the Bankruptcy of David Ian Henderson

BETWEEN

HAVENLEIGH GLOBAL SERVICES LIMITED AND FM CUSTODIANS LIMITED

Judgment Creditors

(Substituted Creditors)

AND

DAVID IAN HENDERSON Judgment Debtor

Hearing: 8 May 2017

Appearances:

D I Henderson - Defendant in Person
C Vinnell and J N Foster for Official Assignee

Judgment:

11 May 2017

JUDGMENT OF GENDALL J

HAVENLEIGH GLOBAL SERVICES LTD v HENDERSON [2017] NZHC 946 [11 May 2017]

Table of Contents

Para No

Introduction [1]

(1)      THE 10 OCTOBER 2016 REVIEW   APPLICATION OF THE

4 OCTOBER 2016 DECISION

[4]

Background facts [4]

Present application [11]

(A)      Jurisdiction [14]

Analysis [19]

Outcome [44]

(B)      Substantive decision [47]

(2)      THE    15    MARCH   2017   REVIEW   APPLICATION   OF   THE

28 FEBRUARY 2017 DECISION

[54]

Background facts [54]

Jurisdiction [58]

Substantive decision [70]

(3)      CONCLUSION

[72]

Introduction

[1] On 10 October 2016 the applicant David Ian Henderson (Mr Henderson) filed an application in this Court which effectively sought to reverse or modify a judgment of Associate Judge Osborne in this Court dated 4 October 2016 in which an application for recusal was dismissed.

[2] Then, on 15 March 2017, Mr Henderson filed a further application in this

Court which sought to review a decision of Associate Judge Osborne dated

28 February 2017 in which a further application for recusal made by Mr Henderson was also dismissed.

[3] I heard argument on these review applications on 8 May 2017. Mr Henderson the applicant appeared in person on these matters. Mr Vinnell appeared for the Official Assignee, a party who opposed the application noted at [1] above. It is useful here to consider the two applications in turn. So first, I turn to consider the 10 October 2016 application by Mr Henderson.

(1) THE 10 OCTOBER 2016 REVIEW APPLICATION OF THE
4 OCTOBER 2016 DECISION

Background facts

[4] On 29 November 2010 Mr Henderson was adjudicated bankrupt by order of this Court. As I understand it, he was to have been automatically discharged from this bankruptcy in January 2014 but the Official Assignee on 28 November 2013 filed a Notice of Objection to Mr Henderson’s discharge pursuant to s 292
Insolvency Act 2006. In addition, two creditors gave notice of their opposition to the discharge.

[5] As a result of the objections to his discharge, the Official Assignee was required to summons Mr Henderson to be publicly examined by the Court. This occurred.

[6] The Court allocated 3 August 2015 as the commencement of Mr Henderson’s

public examination, being in mind s 295 Insolvency Act 2006.

[7] That public examination commenced before Associate Judge Osborne and proceeded for some time with, as I understand it, approximately 20 hearing days of evidence followed by some three days for provision of submissions.

[8] After the hearing of the evidence on the public examination, Mr Henderson raised for the first time this issue over whether Associate Judge…

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: [2017] NZHC 946
Decision Date: 11 May 2017

CaseChat Overview and Summary

In Havenleigh Global Services Limited v Henderson, the court considered two applications by the defendant, Mr Henderson, to review decisions made by an Associate Judge. The first application sought to review a recusal decision made on 4 October 2016, while the second application sought to review a recusal decision made on 28 February 2017. The court found that it lacked jurisdiction to review the Associate Judge's decisions and dismissed both applications.

The court first considered whether it had jurisdiction to review the recusal decision made on 4 October 2016. The court found that the recusal application was determined in the exercise of the Associate Judge's open court jurisdiction in the High Court and therefore should have been appealed to the Court of Appeal. The court dismissed the first application for review on the basis that it lacked jurisdiction.

The court then considered whether it had jurisdiction to review the recusal decision made on 28 February 2017. The court found that the Senior Courts Act 2016 applied to the present situation and that appeals against decisions made by Associate Judges were to be made to the Court of Appeal. The court dismissed the second application for review on the basis that it lacked jurisdiction.

In conclusion, the court dismissed both applications for review on the basis that it lacked jurisdiction to review the Associate Judge's decisions. The court awarded costs to the Official Assignee, which were to be paid by Mr Henderson on a category 2B basis together with disbursements as fixed by the Registrar.

Orders