Havenleigh Global Services Limited v Henderson

[2016] NZHC 562

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2016] NZHC 562

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:	23 March 2016
Appearances:	D I Henderson (bankrupt) in Person as applicant C R Vinnell for Official Assignee T Cooley as Counsel to Assist the Court (appearance excused)
Ruling:	23 March 2016

RULING (NO. 12) OF ASSOCIATE JUDGE OSBORNE

on application to adduce further evidence

[1]      Mr Henderson filed an application entitled “application seeking to adduce further evidence”.  The proposed evidence is for his public examination under s 165

Insolvency Act 2006.  The body of the Notice of Application in fact contains two applications.  Under Schedule A permission is sought to adduce evidence in the form of three documents.  Schedule B seeks, in its terms, an order requiring the Assignee

to produce documents - in other words to provide discovery.

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2016] NZHC 562 [23 March 2016]

The context of the application

[2]      Mr Henderson is a bankrupt.  His public examination was required when the

Official Assignee objected to his automatic discharge.

[3]      Mr Henderson has been publicly examined in 2015 but I have yet to declare the examination to be at an end.  Following a number of earlier directions focused on concluding the evidence and hearing final submissions, I made the following ruling on 3 December 2015:1

Mr Henderson received a final opportunity to file the transcripts of examinations under s 165 of the Act with the highlighting of any passages asserted  by Mr Henderson to  rebut  conclusions  of the Assignee  in  their report.

[4]      By a minute dated 18 December 2015 I also provided directions as to the closing stages of the public examination, namely:

(a)       I further adjourned the proceeding for the hearing of oral closing submissions to commence mid-year (three days reserved).

(b)The Assignee’s written submissions had previously been filed and served.

(c)      Mr Henderson’s written submissions were to be filed and served by

22 January 2016.    I made some provision also for any additional evidence from Mr Henderson in advance of his written submissions.

Mr Henderson met the amended timetable in relation to the filing of his submissions.

[5]      Previously  in  2015  I  had,  on  a  number  of  occasions,  emphasised  to Mr Henderson  the  Court’s  requirement  that  he  adduce  before  the Assignee  was required to present her written submissions any additional evidence which he wished the Court to take into account.  To the extent he was introducing from time to time documents, such as the written statements of other persons, I had also emphasised to

Mr  Henderson  the  limited  weight  which  might  attach  to  such  evidence  if  the

1      Havenleigh Global Services Limited v Henderson [2015] ??.

particular persons were not called to give evidence and made available for cross- examination, particularly if information appearing in their written statements was inconsistent with other evidence such as contemporary documents which had been exhibited.

Mr Henderson’s application

[6]      Mr Henderson divided the subject matter of his application into two parts, Schedule A and Schedule B.  I will deal with matters in the same order.

Schedule A

[7]      Mr Henderson seeks permission to adduce three documents, being:

(a)      An  email  dated  10 April  2013  written  by Grant  Slevin,  a  Senior Investigating Solicitor of the Insolvency and Trustee Service (of the Ministry of Business, Innovation and Employment) to Kevin Sullivan, the liquidator of Property Ventures  Investments  Limited (the most significant of companies associated with Mr Henderson prior to his bankruptcy) (PVL).

(b)A reference dated 11 November 2015 provided by Sir Bob Parker to the District Court at Christchurch.

(c)       A reference dated 11 November 2015 provided by Garry Moore to the

District Court at Christchurch.

[8]      The Assignee does not oppose Mr Henderson’s adducing those three items in evidence.

Order on Schedule A

[9]      I, accordingly, grant Mr Henderson permission to adduce the three documents which I hereby admitted respectively as exhibits W, X and Y.

[10]     Issues relating to what may be taken from those documents and what weight is to be attached to any statements within them are for submission at the hearing.

Schedule B

[11]     Mr Henderson’s Schedule B contains four sets of items which Mr Henderson will seek to produce but in relation to which he first sought an order for discovery as he believes the documents to be in possession of the Assignee.

Item 1

[12]     By Item 1 Mr Henderson seeks:

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

[13]     The Item 1 application hangs off Mr Slevin’s 10 April 2013 email which is

one of the subjects of the Schedule A application.

[14]     Mr Slevin’s email was written to Mr Sullivan, the barrister acting for the liquidator of certain companies previously associated with Mr Henderson, in this particular context it appears that Mr Sullivan was dealing with the affairs of PVL in relation to proceedings involving another company previously associated with Mr Henderson, GP96 Limited.  On 9 April 2013 Mr Sullivan had sent a request to Mr Slevin to clarify whether an application filed in the District Court at Christchurch by Mr Henderson on behalf of GP96 Limited was the subject of any concern to the Assignee.  Mr Walker enquired whether Mr Henderson needed the approval of the Assignee or leave of the Court to file “this new application”.

[15]     In response to the enquiry as to whether Mr Henderson required the approval of the Assignee or the leave of the Court to represent GP96 Limited, Mr Slevin responded that he did not think Mr Slevin needed the Court’s leave to represent a company in the District Court in the light of s 57(2) of the District Courts Act. Mr Slevin then continued:

Certainly he hasn’t approval to be employed by the company but that doesn’t

prevent him from acting in a voluntary capacity.

That leaves the question whether representing a company in Court as its agent would breach prohibition on taking part in the management or control of any business.   Having regard to the purposes of the restriction and the regulation governing applications under s 149, the Assignee is of the view that consent is not required where the particular activity does not involve any financial control of the company and could not cause it to incur significant debts that might not be paid.

Accordingly the Assignee does not regard his consent as necessary for this particular activity, in the circumstances.

[16]     By his application, Mr Henderson asserts that the documents relating to the “policy as articulated by Mr Slevin” constitute material which rebuts the Assignee’s allegations.

[17]     The wording of Mr Henderson’s application implicitly recognises the Ruling

No. 2 which I have previously made in the course of this public examination.2

[18]     By that Ruling I rejected a submission of Mr Henderson that there should be, in the context of this public examination, some right of general discovery.   In the Ruling I referred to the submissions of Mr M S R Palmer QC.  Mr Palmer appeared for the Assignee, in opposition to Mr Henderson’s application for the release of all s 165  transcripts  and  a  number  of  other  documents,  both  specific  and  general. Mr Palmer stated, in the course of his written submissions:

The content of the examinations and documentation does not contradict the

information that has been provided to the Court in the Assignee’s Report.

[19]     In my judgment in Ruling No. 2 I referred to Mr Palmer’s statement to the

Court in broader terms than expressed in the written document.  I observed:

[100]    … Mr Palmer was able, in the course of his submissions, to proffer to the Court the Assignee’s confirmation that she and her officials have withheld no information which would tend to rebut conclusions stated in her report.

[20]     Notwithstanding this background I find there to be insuperable difficulties in

the way of Mr Henderson’s Item 1 application.

2      Havenleigh Global Services Limited v Henderson Ruling No. 2 [2015] NZHC 1762

[21]    First, the Slevin email was not a communication to Mr Henderson and, therefore, has no relevance in terms of influencing Mr Henderson in the actions he took during his bankruptcy.

[22]     Second, the Slevin email, while used as a basis of a broader document request in relation to the Assignee’s s 149 approvals policy, is not an email concerned with stating  a  general  policy  or,  indeed,  stating  a  general  approach  in  relation  to Mr Henderson’s bankruptcy as a whole.   Mr Walker’s enquiry was specifically in relation to Mr Henderson’s right to file GP96 Limited’s application in the District Court.  Mr Slevin responded to the email by referring to the right of representation in the District Court.  His answer as to the Assignee’s view of Mr Henderson’s role in the proceeding for GP96 Limited concludes, by the reference to Mr Henderson’s involvement in GP96 Limited “for this particular activity, in the circumstances”.  To the extent that the middle passage, which I have quoted from the Slevin email, refers to financial control and the incurring of debt, it is clearly a comment focused on the specific enquiry as to the conduct of proceedings and not more generally or comprehensively on consent requirements.

[23]     Thirdly, as Mr Vinnell submitted, it is for this Court to determine whether Mr Henderson breached the provisions of the Act.  An opinion or view expressed by an officer of MBIE or indeed a policy document of the Assignee cannot affect the correct interpretation of s 149 of the Act.  If an incorrect opinion were communicated to Mr Henderson (which is not the case with the Slevin email, which was addressed to Mr Sullivan only) I might properly take that into account in my assessment of Mr Henderson’s conduct as a bankrupt.  But Mr Henderson has had the opportunity, because such matters as to what he was told are within his own knowledge, to give evidence of what he was told by various officials of MBIE, including Grant Slevin and Terry Marshall.  He has done that.  Those direct communications can be taken into account.

[24]     Finally, on the evidence of Grant Slevin, filed in opposition, Mr Henderson has had a copy of the Slevin email since it was provided to Mr Henderson in a batch of  documents  on  23  January  2014  pursuant  to  a  Privacy  Act  request.     If Mr Henderson wished to pursue orders for further disclosure upon the basis of that

document the request ought to have been made much earlier and, in any event, before all evidence was called and I made directions for the filing of closing submissions.   The delay, whilst not decisive but for other considerations I have touched on, is a significant factor.  It counts against granting an application which would, by its nature, lead to a process of discovery and inspection, the possible adducing of further evidence, the testing of that evidence and consequential delay.

[25]     Nothing in the content of the Slevin email or the circumstances relating to it warrants, in my judgment, an order that the Assignee produce further documents referred to in Mr Henderson’s Item 1.

Item 2

[26]     Mr Henderson’s Item 2 is similar to Item 1, and reads:

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

[27]     This application must fail for similar reasons to those identified in Item 1.

Item 3

[28]     The documents sought in Item 3 form a different category of documents. Item 3 reads:

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.

[29]     The  request  for  the  Item  3  documents  involves  a  misapprehension  on Mr Henderson’s  part  as  to  what  is  evidence  and  what  are  properly  matters  for submission.

[30]     The parties have an obligation to disclose to the Court in their submissions any authorities of which they are aware and are relevant to the decisions which the Court must make on this public examination. Judicial decisions are, accordingly, matters for submission, not for evidence.

[31]     As it is, I am informed by Mr Vinnell that on 22 January 2016 the Assignee provided Mr Henderson with a copy of the decision in Cameron v The Official Assignee,3 in response to an Official Information Act request that Mr Henderson had made.

[32]     Mr Henderson, now holding a copy of Cameron, if he is of the view that it is relevant to the judgment I which have to give, will be entitled to make closing submissions relating to that or, indeed, any other relevant authorities.

[33]     No discovery order is justified in relation to such decisions.

Item 4

[34]     By  Item  4  Mr  Henderson  seeks  Copies  of  the  transcripts  of  s  165 examinations relating to :

(a)       Mr Ferguson

(b)      Mr Leishman

(c)       Officers of the ANZ [bank]

[35]     Mr Henderson has not provided an evidential basis for a belief that transcripts of s 165 examinations for either Mr Leishman or other officers of the ANZ exist. Mr Vinnell has confirmed, as counsel for the Assignee, that no such transcripts exist (Mr Leishman and ANZ staff having been summoned for examination under the Act but not, in fact, examined).  If Mr Henderson is not prepared to accept that indication he is free, of course, to contact Mr Leishman and make his own enquiry.

[36]     Mr Vinnell, for the Assignee, noted that Mr Henderson’s application did not identify,  in  relation  to  Mr  Ferguson,  whether  the  transcript  sought  was  that  of Mr Ferguson, being Gregor Ferguson, or Mr Ferguson, being Alistair Ferguson.  The transcript  of  Gregor  Ferguson  has  already  been  filed  in  relation  to  public

examination.   Mr Henderson confirmed in his submissions that that was not this

3      Cameron v The Official Assignee [2014] NZHC 2820.

transcript sought. He explained that item 4(a) in fact relates to Alistair Ferguson whose transcript he already possesses.   If Mr Henderson wishes, pursuant to the directions which I previously made in relation to the tendering of marked up transcripts, to produce Mr Alistair Ferguson’s transcript that should be done under cover of a memorandum promptly.

[37]     In the circumstances I find no basis to make orders as sought in Item 4.

Order on Schedule B

[38]     I, accordingly, dismiss the application in relation to all items identified in

Schedule B of the application.

Matters not the subject of an interlocutory application

[39]     I dealt with the matters which were the two subject matters of the application. I will deal only briefly with a further matter raised in Mr Henderson’s submissions. It was not the subject of an interlocutory application on notice and I will not be reaching any conclusions or decision in relation to it. I will only briefly describe it.

[40]     Mr Henderson entitled his synopsis, which he filed, as a synopsis regarding

‘Evidential   Status   of   Assignee’s   “Information”   Contained   in   her   Report’. Mr Henderson’s submissions then proceeded in part to develop a proposition that the Assignee’s report and documents provided to the Court should be accorded no evidential weight.  That would obviously be a matter influencing what matters could be discussed in closing submissions.

[41]     Mr Henderson then went  further,  however,  and  submitted that  the Court should bring the public examination to an end now and make an order discharging him from bankruptcy.

[42]     An application of such fundamental significance should not be entertained on the basis of an informal request such as occurred here through the inclusion in submissions on an interlocutory application regarding other matters.  Furthermore, I am not satisfied that the type of orders sought, even if pursued formally on an

application, should be dealt with on an interlocutory application given the stage this proceeding has reached. As the point the Court perceived that the evidence had been given, directions were made for the filing of closing submissions on the basis that the parties should be able to make their submissions on the basis of that evidence.   I have received detailed and, indeed, comprehensive synopses of submissions from both parties and it is those submissions which should now be taken into account in any  decision  of  the  Court  in  relation  to  the  disposition  of  Mr Henderson’s bankruptcy.  Beyond these observations it is inappropriate for me to comment further on Mr Henderson’s informal request.

Costs

[43]     Having delivered the above judgment, I offered to hear from Mr Vinnell and Mr Henderson as to costs.  Before doing so I indicated that in my preliminary view it is  appropriate  that  Mr  Henderson  pay  costs  on  a  2B  basis  together  with disbursements.   That would follow the usual principle that costs follow the event. An interlocutory application was not required in relation to Schedule A matters. Permission to adduce those Schedule A documents was not opposed by the Assignee. Mr Henderson has been free to adduce the two references at any point of his public examination  after  they  came  into  existence.    The  granting  of  the  (un-opposed) request to now adduce the Slevin email is in the nature of an indulgence granted to Mr Henderson, having regard to the period in which he had been in possession of that document.

[44]     On  the  Schedule  B  items,  Mr  Henderson’s  application  has  been  wholly

unsuccessful and the usual principle would be that costs follow the event.

[45]     Mr Vinnell adopted the position that there should be an order in terms of my preliminary view.    Mr  Henderson,  as  a  bankrupt  in  person,  has  understandably indicated that he was not in a position immediately, at the end of my oral judgment, to deal with the costs issue.

[46]     I reserve costs.   Mr Vinnell has indicated he does not wish to file further submissions in the light of my preliminary indication.  I direct that Mr Henderson file and serve his written submissions within 10 working days, limited to four pages.

I direct that if Mr Vinnell wishes to make any reply the reply is to be filed and served within two working days thereafter.  I will then deal with costs on the papers.

Associate Judge Osborne

Solicitors:

Anthony Harper, Christchurch

Brookfields, Auckland

Copy to Mr D I Henderson, Christchurch