Havenleigh Global Services Limited v Henderson - [2016] NZHC 1472

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2016] NZHC 1472

BETWEEN
HAVENLEIGH GLOBAL SERVICES

LIMITED AND FM CUSTODIANS LIMITED

Judgment Creditors (Substituted)

AND

DAVID IAN HENDERSON Judgment Debtor/Applicant

Hearing: 23 June 2016

Appearances:

D I Henderson - Applicant in Person
P V Cornege for the Official Assignee, the Respondent

Judgment:

30 June 2016

JUDGMENT OF GENDALL J

Introduction

[1] The applicant, David Ian Henderson (Mr Henderson), seeks to review a decision of Associate Judge Osborne in this Court dated 23 March 2016 (“Ruling No. 12”)1 under r 2.3 of the High Court Rules and s 26P of the Judicature Act 1908.

[2] This application is opposed by the Official Assignee (the Assignee).

Background

[3] Mr Henderson is an undischarged bankrupt. He is still currently subject to public examination under s 165 of the Insolvency Act 2006 (“the Act”) an examination which began, I understand, nearly 11 months ago on 3 August 2015. In the course of that examination, Mr Henderson applied to Associate Judge Osborne,
who was conducting the public examination, to adduce further evidence. It is that

1 Havenleigh Global Services Ltd v Henderson [2016] NZHC 562 (“Ruling No. 12”)

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2016] NZHC 1472 [30 June 2016]

application to adduce further evidence that was the subject of Ruling No. 12. Ruling No. 12 was a fully reasoned decision of the Associate Judge and, as I understand it, followed a defended hearing which involved full argument from opposing parties (which included Mr Henderson and counsel for the Assignee).

[4] The evidence sought by Mr Henderson in his application was divided into two schedules. Schedule A related to specific documents noted as:

(a) An email dated 10 April 2013 written by Grant Slevin, Senior Investigating Solicitor to Kevin Sullivan, the liquidator of Property Venture Limited (the Slevin email);

(b) A reference letter written by Sir Bob Parker; and

(c) A reference letter written by Garry Moore.

[5] At the time the Assignee did not oppose Mr Henderson’s adducing those Schedule A items noted above, and therefore Associate Judge Osborne granted permission to adduce those three documents. No issue arises here regarding this aspect.

[6] However, what is of relevance to the present review are the items sought by

Mr Henderson listed in Schedule B. These were specified as:

Item 1

Copies of all communication of any nature, including emails, letters, memos, diary notes, meeting notes, that relates to the s 149 approvals policy as articulated by Mr Slevin an email attached to this application. In particular, any interoffice communication, including recollections of those communication between Mr Marshall, Mr Slevin and Ms Cox.

Item 2

Copies of any other material held by an Assignee that in any way relates to the s 149 policy articulated by Mr Slevin

Item 3

Copies of any Court decisions that relate to the unlawfulness of actions by the Assignee including traditional decisions regarding purported statutory forms provided to me by the Assignee to complete.

Item 4

Copies of…

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: [2016] NZHC 1472
Decision Date: 30 June 2016

CaseChat Overview and Summary

In Havenleigh Global Services Limited v Henderson, the court was called upon to review a decision made by an Associate Judge, Associate Judge Osborne, in a case involving David Ian Henderson, an undischarged bankrupt. Henderson sought to review a decision under Rule 2.3 of the High Court Rules and section 26P of the Judicature Act 1908, which concerned the adducing of evidence during his ongoing public examination. The Official Assignee, who opposed Henderson’s application, argued that Henderson was attempting to re-litigate matters already decided. The legal issues before the court were whether the Associate Judge's decision was correctly made and if there was any basis to grant Henderson's application for review.

The court found that the Associate Judge's decision was well-reasoned and followed a defended hearing with thorough argument from both sides. Henderson's application to adduce specific documents, outlined in Schedule B of his application, was denied by the Associate Judge who concluded that the documents were irrelevant or had already been provided. The court upheld the Associate Judge's decision, noting that Henderson had failed to demonstrate that the decision was wrong or based on unsupportable findings of fact or incorrect principles of law. The court also dismissed Henderson's claims of procedural unfairness and the assertion that the Official Assignee had withheld material evidence. Consequently, the application for review was dismissed, and costs were left to lie where they fell.

Orders