Havenleigh Global Services Ltd v Henderson - [2014] NZHC 499

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2014] NZHC 499

IN THE MATTER OF the Insolvency Act 2006

AND

IN THE MATTER OF the Bankruptcy of DAVID IAN HENDERSON of Christchurch

BETWEEN HAVENLEIGH GLOBAL SERVICES LIMITED and FM CUSTODIANS LIMITED
Judgment Creditors (Substituted
Creditors)

ANDDAVID IAN HENDERSON Judgment Debtor

Hearing:

Additional submissions in writing received:

27-28 February 2014

5 March 2014 and 7 March 2014

Appearances: D I Henderson (Bankrupt) in person
C R Vinnell for Official Assignee

Judgment: 18 March 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to documents applications

[1] The Official Assignee applies for directions in relation to the bankruptcy of

David Ian Henderson.

[2] The directions which the Assignee seeks are identified in two applications. The directions relate to:

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2014] NZHC 499 [18 March 2014]

(a) documents now in possession of Robert Walker, the liquidator of Property Ventures Ltd (in receivership and in liquidation) and a number of other entities previously related to Mr Henderson, which documents were recovered from Mr Henderson’s laptop in the central business district after the Christchurch earthquakes – the documents would be provided in the form of an external hard-drive and/or flash drives in which electronic documents are held;

(b) emails in Mr Henderson’s possession which were sent to or received

by him from named addressees/correspondents during his bankruptcy.

Background

[3] Mr Henderson was adjudicated bankrupt on 29 November 2010.

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

2014.

[5] The Assignee on 28 November 2013 filed a notice of objection to Mr

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

[6] Additionally, two creditors have given notice of their opposition to the discharge and the Court has made a ruling as to their standing as creditors. 1

[7] By reason of the objection to discharge, the Assignee is required2 to summon Mr Henderson to be publicly examined by the Court as soon as practicable after the expiry of the three-year period referred to in s 290 Insolvency Act 2006.

[8] An issue arose as to the appropriateness of a decision by the Assignee to defer issuing a summons to Mr Henderson after the three year period expired in January 2014. That issue was the subject of an application which I heard at the same
time as hearing these two applications. It is the subject of a separate judgment which

1 Havenleigh Global Services Ltd v Henderson [2014] NZHC 336.
2 Insolvency Act 2006, s 295.

I have earlier issued.3 Pursuant to that judgment, the Assignee will now summon Mr

Henderson to an examination in the High Court commencing 9 June 2014.

[9] Before that examination, the Assignee is required to prepare a report and file it.4 The prescribed subject matter of the Assignee’s report is extensive and includes generally the performance of the bankrupt’s duties under the Insolvency Act.

[10] It is that pending examination and report which provides the context in which the Assignee…

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: [2014] NZHC 499
Decision Date: 18 March 2014

CaseChat Overview and Summary

In Havenleigh Global Services Ltd v Henderson, the Official Assignee applied for directions in relation to the bankruptcy of David Ian Henderson. The Assignee sought directions in relation to documents in possession of the liquidator of Property Ventures Ltd and other entities previously related to Mr Henderson, which were recovered from Mr Henderson’s laptop in the central business district after the Christchurch earthquakes. The Assignee also sought directions in relation to emails in Mr Henderson’s possession which were sent to or received by him from named addressees/correspondents during his bankruptcy. Mr Henderson opposed the Assignee’s applications on a number of grounds, including that the Assignee’s pursuit of documents from him and the liquidator was oppressive and abusive. The Assignee argued that the relevant provisions of the Insolvency Act 2006 entitled her to require Mr Henderson to deliver up documents relating to his property, conduct or dealings. The court found in favour of the Assignee, determining that the broad construction of the term “conduct” was appropriate, and that the Assignee’s pursuit of documents was not an abuse of her powers. The court made orders that the liquidator deliver to the Assignee a copy of the external hard drive and of the flash drives on which is stored electronic data extracted from a laptop obtained by Police. The court also made orders that the Assignee be entitled to require Mr Henderson to deliver up documents relating to his property, conduct or dealings, with conditions to protect Mr Henderson’s privacy and the rights of privilege of Mr Henderson or any other.

Orders