Havenleigh Global Services Limited v Henderson

[2015] NZHC 2186

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2016] NZHC 2186

IN THE MATTER

of the Insolvency Act 2006

AND

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

Conference:

9 September 2015

Additional submissions from Mr Henderson, 10 September
2015

Appearances:

J Foster and C R Vinnell for Official Assignee
D I Henderson (Bankrupt) in Person

T Cooley as counsel assisting the Court (excused from the hearing)

Judgment:

10 September 2015

RULING (NO. 7)  OF ASSOCIATE JUDGE OSBORNE

as to form of Mr Hendersonʼs additional evidence

[1]      This ruling concerns whether the Court has power to direct that part of a

bankrupt’s evidence at a public examination under the Insolvency Act 2006 shall be

provided in the form of a brief ahead of a resumed examination.

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2016] NZHC 2186 [10 September 2015]

Background

[2]      The public examination of Mr Henderson has partly occurred and now stands adjourned to 27 October 2015.

[3]      Mr Henderson has said that on the resumption date he intends to call the evidence of at least one witness and to himself give additional evidence (additional to that which he has added in the examination already conducted).

[4]      When Mr Henderson concluded giving his additional evidence on the matters he was prepared for (that point having been reached on 20 August 2015), I adjourned the proceeding tentatively to resume on 27 October 2015.  In the initial discussions around that time, I had tentatively set a timetable which would have required Mr Henderson to provide any additional evidence of himself, witnesses or purely documentary evidence by 4 September 2015.  By a Minute dated 20 August 2015, I invited counsel and Mr Henderson to consider again the timetable in the light of Mr Henderson’s strong preference for a 27 October 2015 resumption date (rather than a date at the end of November/early December).   Following a further conference I directed that Mr Henderson was to provide all additional evidence of himself, witnesses or purely documentary evidence by 4 September 2015.  The 27 October

2015 resumption date was confirmed.

[5]      Those directions were initially not challenged by Mr Henderson.

[6]      Subsequently, there have been a number of case management conferences to deal with a number of issues which have arisen.

[7]      As a consequence, I amended the timetable for Mr Henderson’s evidence to

11 September 2015.

Mr Henderson’s earlier objections

[8]      Mr  Henderson  objects  to  the  direction  which  requires  him  to  provide  a written brief of his evidence by a particular timetable date for the resumed hearing.

[9]      On 7 September 2015, Mr Henderson explained his position in relation to not providing a written brief in this way:

It is my wish to read this [additional] material into evidence or talk to it under oath so that such evidence and commentary, or explanation, forms part of the transcript.

[10]     Mr Henderson indicated that he still anticipated complying with the amended timetable date of 11 September 2015 for the affidavit of his proposed witness.

[11]     By Minute dated 8 September 2015, I recorded:

[5]       Noting Mr Henderson’s wish to “talk to his evidence [under oath]”, I still expect to receive a written brief which Mr Henderson will be free to read into the record at the resumed hearing (if he does not wish to have it taken as read) – I wish to discuss this expectation and the timing of provision of the brief.

[12]     Yesterday I convened a conference to discuss that and other timetable issues. Following that conference I issued a further Minute confirming the timetable date for both Mr Henderson’s witnesses’ affidavit and Mr Henderson’s brief of 11 September

2015.

[13]     In an email to the Court today, Mr Henderson now explains his desire to give evidence “orally”, upon the basis that he has no ability to prepare a brief in the time provided.

[14]     The impact of time pressures upon Mr Henderson is something which the Court has been seeking to accommodate through a number of conferences and memoranda over the last few weeks.   It has led me to offer Mr Henderson the alternative  of  a  later  (late-November/early  December)  resumption  date  (which clearly would have allowed sufficient time for the matters which Mr Henderson complains  there  is  insufficient  time  to  prepare).    Mr  Henderson  has  repeatedly chosen to adopt the 27 October 2015 resumption date in preference to a later date.  In doing so, he has known from me that he would then have to comply with a tight timetable so that evidence and exchange of submissions  could occur within the limited time before 27 October 2015.

[15]     A later date (now 1 December 2015) remains available as Mr Henderson knows.   It would mean there is sufficient time for preparation of the matters in relation to which he is at present asserting he has insufficient time for preparation.

[16]     We  are  at  a  point  where  Mr  Henderson  appears  to  be  saying  that (independently of his strong preference to not provide a brief) he simply does not have the time to prepare a brief according to the necessary timetable.  I have today issued a Minute extending the date for the provision of Mr Henderson’s own brief to

18 September 2015.

Objection by reference to s 186 Insolvency Act 2006

[17]     Mr Henderson by his email today, raises a matter which goes beyond his preferred form of presenting his evidence and beyond his inability to complete a brief within the timetable period.

[18]     Mr Henderson refers to the provisions of s 186 of the Act which provide:

186     Representation

(1)      A person who is examined under this Act may be represented by a lawyer.

(2)      The person may be questioned by his or her lawyer, and any answers form part of the examination.

[19]     Mr Henderson submits that were he represented in this public examination, then his further evidence would be simply adduced by his counsel asking him in Court questions in respect of that evidence.   He submits that a brief of evidence would not be required in such circumstances.

Discussion

[20]     Mr Henderson has elected in this public examination to represent himself. Strictly speaking, the provisions of s 186 as to representation and questions from his lawyer do not arise.

[21]     The present examination is unusual in that it extended well beyond the period initially estimated by the “parties”.  That is not a criticism of anyone involved but it simply the reality.   The  Court  made additional time available after the initially estimated period and in the last days of that period, Mr Henderson presented some of his own evidence.

[22]     There was then the need for a lengthy adjournment because of the Court’s need to find sequential days for the resumed hearing and because Mr Henderson required time to digest and to prepare his response to the additional documents which had come in during the examination.

[23]     We therefore have a situation in which the bankrupt is not giving evidence immediately at the end of his examination (except to the extent he has already done that).  He is in fact to complete his public examination after a two month break (if the examination resumes on 27 October 2015) or after a three month break (if it resumes on 1 December 2015).

[24]     Neither the Act nor the Rules provide for this situation.   In the approach I adopt, I bear in mind the objective of the High Court Rules which is to secure the just, speedy, and inexpensive determination of proceedings.1    Whether or not that Rule applies strictly to this public examination, the same outcome would be achieved by the application of the Court’s inherent jurisdiction to regulate its process.

[25]     Were Mr Henderson’s additional evidence not to be the subject of briefed evidence  provided  well  in  advance  of  the  resumed  date,  I would  complete  the evidence part of the public examination before adjourning so that both sides could prepare and file written submissions which would then be spoken to orally at a later date.     Mr  Vinnell,  for  the  Assignee,  anticipated  precisely  that  possibility  by suggesting in a recent memorandum that the 27 October 2015 date might be utilised for  the  completion  of  evidence  and  the  1  December  2015  date  utilised  for

submissions.

1      High Court Rules, r 1.2.

[26]     I continue to view the most efficient course as being to have Mr Henderson’s sworn  or  briefed  evidence  provided,  together  with  exchanged  submissions,  in advance of a resumed hearing which deals with both the completion of evidence and submissions.

[27]     Whichever course is adopted (single hearing or split hearing), the efficient means of dealing with additional evidence having regard to the broken hearing is that Mr Henderson provide a brief of his evidence.

Ruling

[28]     I direct that, to the extent that Mr Henderson is to adduce further evidence in the  course  of  his  public  examination,  he  shall  provide  a  written  brief  of  such evidence in accordance with such timetable as the Court may direct.

Associate Judge Osborne

Solicitors:

Anthony Harper, Christchurch

Kensington Swan, Auckland

Copy to:

Mr D I Henderson, Christchurch. Luke Cunningham Clere, Wellington