Havenleigh Global Services Limited v Henderson

[2015] NZHC 1947

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2015] NZHC 1947

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

Hearing:

3-7 , 11-14 August 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)

Ruling:

17 August 2015

RULING (NO. 6) OF ASSOCIATE JUDGE OSBORNE

as to further evidence to be given by Mr Henderson

[1]      Mr Henderson is in the course of presenting his own evidence in this public

examination, following questions asked by the Court and Ms Foster for the Assignee.

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2015] NZHC 1947 [17 August 2015]

[2]      A point was reached shortly before the luncheon adjournment on Friday when Mr Henderson was giving evidence as to his dealings with other people.   It had previously been recognised that the examination would need to be adjourned from Friday with Mr Henderson completing his own presentation later this week.   Mr Henderson indicated that during the present adjournment he would be speaking to other parties to discuss their recollection of events so that he could continue his evidence on those matters.

[3]      Ms Foster made an objection.   Her objection is that the course which Mr Henderson was outlining is incompatible with the process of a public examination provided in the Insolvency Act 2006.  Her submission was that the Act anticipates that the bankrupt will be examined as to his own knowledge, without prior notice of the questions to be asked.  Ms Foster submitted that the concept that a bankrupt will during a break in the examination be able to go off and discuss the recollection of others in order to continue the bankrupt’s evidence is inconsistent with the legislative intention.

[4]      Mr Henderson submitted that the course he had in mind was both appropriate and  fair.    He  noted  that  there  had  been  a  very  substantial  amount  of  material provided by the Assignee to support her Report, right up to the time of the hearing. There were difficulties for Mr Henderson in digesting that material and in gathering information needed to meet the matters in the Report and supporting documents.  He observed that in terms of the pre-examination timetable that had been in place he had, for instance, arranged for the briefing of certain witnesses only to receive the Assignee’s  supplementary  report  and  additional  documents  almost  immediately before the hearing.  On some matters, there had been no opportunity for him to speak to potential witnesses before the examination commenced.

Discussion

[5]      Mr Henderson’s concern, namely to be able to obtain appropriate evidence from other witnesses, is appropriate when a bankrupt wishes to call witnesses at his or her examination.  A difficulty with Mr Henderson’s submissions is that he had indicated to me earlier in the week  that he no  longer had  the intention to call

witnesses and would instead be intending to rely on unsworn statements (which became the subject of my Ruling No 5).1   The need to brief or re-brief witnesses who will give evidence in the normal way had fallen away.  Mr Henderson may still wish to have other people provide unsworn statements which he may by my Ruling No 5 do, subject to the limits which will flow in terms of the weight to be attached to such statements.  However, in the way Mr Henderson presented his submissions, it was

evident that his primary purpose in speaking to those other persons during any adjournment was so that he himself could give more complete evidence of resumption.

[6]      When the examination resumes, Mr Henderson is entitled to give evidence from his own knowledge and recollection.  But through talking between last Friday and this coming Wednesday to other “witnesses”, Mr Henderson may add to his knowledge and recollection the knowledge and recollection of other persons whom he does not intend to call as witnesses.   I will be requiring Mr Henderson to give evidence of his own knowledge and recollection.  This, of course, does not preclude Mr Henderson from giving evidence of the statements made to him by others during the events which are the subject of his examination, as those are contemporaneous statements which may inform conclusions which the Court must reach as to these events.   But where the information which Mr Henderson seeks to provide to the Court is simply that which a potential witness has given him in the context of this Examination, any such evidence should be provided by that person and not through Mr Henderson.

Direction

[7]      In  the  event  Mr  Henderson  has  spoken  or  speaks  in  the  course  of  the Examination to persons who might be called by him as witnesses of fact, and Mr Henderson thereby obtains information which he wishes to provide to the Court, I direct Mr Henderson to clearly identify when giving his evidence in relation to such

information the source and timing of the information he received, to enable the Court

1      Havenleigh Global Services Limited v Henderson [2015] NZHC 1930 [13 August 2015].

to appropriately rule on its admissibility and weight.

Associate Judge Osborne

Solicitors:

Anthony Harper, Christchurch. Kensington Swan, Auckland

Copy to:

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