Havenleigh Global Services Ltd v Henderson

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2010-409-000559 [2015] NZHC 1762

IN THE MATTER OF

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:

16 and 17 July 2015

Appearances:

M S R Palmer, QC and P V Cornegé for Official Assignee
D I Henderson (Bankrupt) in Person

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

Ruling:

29 July 2015

PRE-EXAMINATION RULING (NO. 2) OF ASSOCIATE JUDGE OSBORNE

as to cross-examination and discovery

Introduction

[1]      David   Ian   Henderson   (Mr   Henderson)   was   adjudicated   bankrupt   on

29 November 2010.

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2015] NZHC 1762 [29 July 2015]

[2]      He was to have been automatically discharged from bankruptcy in January

2014.

[3]      The  Assignee,   in   November   2013,   filed   a   Notice   of   Objection   to

Mr Henderson’s discharge, pursuant to s 292 Insolvency Act 2006.

[4]      The Court has allocated 10.00 am, 3 August 2015 as the commencement of the public examination  of Mr Henderson as  required by s  295 of the Act, and Mr Henderson has been summoned accordingly.

[5]      On 19 June 2015, the Assignee filed her report as required by s 296(1) of the

Act.

Mr Henderson’s interlocutory applications

[6]      This  judgment  is  in  relation  to  that  part  of  a  notice  of  interlocutory application by Mr Henderson in which he seeks two sets of orders in relation to the conduct of the public examination.  Mr Henderson seeks orders:

(a)     allowing him to cross-examine a finite list of witnesses relevant to the determination of the proceeding; and

(b)requiring that the Assignee provide to Mr Henderson certain categories of documents as specified in his application being:

(i)       copies of all s 165 notices issued in respect of the bankruptcy;

(ii)copies of all transcripts of interviews conducted or purportedly conducted under s 165;

(iii)     copies of all s 171 notices issued in respect of the bankruptcy;

and

(iv)copies  of  any reports,  memoranda,  diary notes,  inter-office memos and e-mails, between office and/or employees of the Insolvency and Trustee Service.

[7]      This judgment also formally relates to a final part of Mr Henderson’s notice of interlocutory application  being a request  for  an  order that  Mr Henderson be permitted to inspect documents pursuant to s 153 of the Act.   In the course of argument, that application fell away.   The Assignee’s position has been that all relevant documents have been made available for inspection.  If issues remain they are for resolution pursuant to Mr Henderson’s appeal rights and not as an interlocutory issue relating to the public examination.  For that reason, this aspect of Mr Henderson’s interlocutory applications will be formally dismissed at the conclusion of this judgment.

[8]      The Assignee opposes the remaining applications.  Through Mr Palmer QC, she asserts that the calling of witnesses (employees of the Ministry for Business Innovation and Enterprise (MBIE)) for cross-examination would be contrary to…