Havenleigh Global Services Limited v Henderson

[2015] NZHC 1927

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2015] NZHC 1927

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 , 11-13 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:

13 August 2015

RULING (NO. 4) OF ASSOCIATE JUDGE OSBORNE

as to Mr Henderson's witnesses

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2015] NZHC 1927 [13 August 2015]

[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. This morning we commenced the second day of Mr Henderson’s presentation of his own evidence.

[2]      Mr Henderson sought to hand in for presentation as an exhibit a brief of evidence obtained from a Mr Wilson.  Ms Foster objected to the presentation of a brief of evidence if the intended witness has not been called.   Mr Henderson confirmed that it is not his present intention to call the briefed witness.

[3]     It was agreed between the Assignee and Mr Henderson before the commencement of this public examination that Mr Henderson would be able to call the  evidence  of  other  witnesses  after  the  questioning  of  Mr  Henderson  was completed.  I have accepted that that is the course which will be adopted.  As Mr Henderson’s public  examination  has  continued,  it  has  become apparent  that  the examination will not be completed within the present period and that an adjournment will be needed (my first available time being in late-October) when Mr Henderson’s witnesses might be called and submissions heard.  Mr Henderson had indicated that he was likely to call up to three or four witnesses.  The directions I had earlier made were that the briefs of those witnesses were to be provided to the Assignee a period before the examination commenced (which I understand Mr Henderson did).   Mr Henderson was also required at the same time to obtain from those witnesses a sworn version of the brief so that once he made a decision to definitely call the witness he would be able to immediately provide the affidavit form of the evidence to the Court and the Assignee before the examination of that witness commenced (my intention being in relation to each witness that the affidavit be taken as read).

[4]      Mr Henderson indicates that he has received substantial assistance from the persons whose briefs he has provided and that he does not wish to prevail further upon their time and cause them expense.  I have explained to Mr Henderson that the Court’s processes anticipate the cooperation of witnesses who can provide relevant evidence in  a Court  and,  in  the event  cooperation  is  not  available, provide for

compulsory attendance with (modest) prescribed fees payable.   Mr Henderson confirmed that he does not wish to put his witnesses into what it would still be an out-of-pocket situation.   He also has other potential witnesses who may be inconvenienced in relation to their business.  It is for Mr Henderson to reach his own decision as to whether to call witnesses.

[5]      Mr Henderson submitted that there is a disparity between the position of the Assignee in simply providing a report supported by a great volume of documents on the one hand and his position in which the Court requires of him (or his witnesses) admissible evidence.  I have re-explained to Mr Henderson, as has been discussed in previous interlocutory hearings and in discussions between the Court and the parties, that the way in which the Assignee’s report comes before the Court is prescribed by Parliament in the Insolvency Act.   Mr Henderson through his public examination then has the opportunity to respond to the report by sworn evidence.   Where the bankrupt’s response is to be supported by the evidence of others, it is appropriate that the Court require that the evidence be sworn evidence. That position was clearly signalled by me from the outset and was adopted by the parties and the Court in establishing the pre-examination timetable.

[6]      I have indicated to Mr Henderson that I will not refuse to have before the Court unsworn and untested evidence of any persons who have provided such statements to him but that Mr Henderson must appreciate that the Court is unlikely to attach significant weight to such untested evidence.  If Mr Henderson wishes to adduce such letters or briefs, I have indicated to him he is to do so at the end of his current presentation of evidence.   He and Ms Foster will then be able to make submissions in relation to such letters or briefs at the very conclusion of the examination (in October).

Ruling

[7]      I direct:

(a)      Mr Henderson remains entitled to call the evidence of witnesses to be sworn and examined in the normal way, with such evidence to be before the Court as tested evidence and given weight accordingly;

Mr Henderson, if not calling a witness to give evidence, may nevertheless produce a brief of evidence (or similar) from that person, to be provided as an exhibit by Mr Henderson at the conclusion of his current presentation of evidence, but with such document to be accepted as an exhibit and to be taken into account by the Court upon the basis that it is the untested statement of its maker.

Associate Judge Osborne

Solicitors:

Anthony Harper, Christchurch. Kensington Swan, Auckland

Copy to:

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