Hearing:
4, 5, 6 and 7 July 2016

Memoranda 14 July 2016, 1 September 2016,
14 September 2016, 26 September 2016
Minute 20 December 2016

Appearances:

J Moss and C T Child for the Plaintiff
S M Kinsler and S K Shaw for the Defendant

Judgment:

30 March 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 March 2017 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Counsel/Solicitors:
Jai Moss, Barrister, Christchurch
Meredith Connell, Wellington

DAVID IAN HENDERSON v ATTORNEY-GENERAL [2017] NZHC 606 [30 March 2017]

[1] This case concerns the powers of the Official Assignee and the right to privacy, and where the twain shall meet.

[2] Put more drily, the issue is whether a requirement by the Official Assignee under s 171 of the Insolvency Act 2006 (the Act) for production of documents on the laptop of Mr Henderson, and subsequent review of some of those documents, breached Mr Henderson’s rights under s 21 of the New Zealand Bill of Rights Act
1990 (BORA).

[3] The questions to be answered are:

(a) Was there a “search or seizure” for the purposes of s 21 of the BORA?

(b) If so, was any search or seizure “unreasonable” (which imports

whether it was unlawful)?

(c) If unreasonable, what is an effective and appropriate remedy in the circumstances?

Facts

General background

[4] David Henderson was adjudicated bankrupt on 29 November 2010. He had previously been bankrupted in August 1996, and was automatically discharged from that bankruptcy in August 1999.

[5] Leading up to his second adjudication, Mr Henderson had been (at least) the director of numerous companies involving property development and hospitality businesses. Mr Henderson said it may well have been more than 100. There was a question over how many were “live”.

[6] After several requests by the Official Assignee, Mr Henderson had roughly filled out a statement of affairs, stating that he owned no assets and that there were two trusts of which he was a discretionary beneficiary. The form required him to say

what property was owned by the trusts. That was left blank. Mr Henderson told the

Official Assignee to refer all questions to his lawyer.

[7] Mr Henderson’s de-facto partner of over 16 years, Kristina Buxton, was a co-director and shareholder of some of the companies. She was also the director of the corporate trustee for one of the trusts of which Mr Henderson was a beneficiary.

[8] The exact nature of the relationship between the companies, the trusts, and Mr Henderson was unclear. There was (as at 2011) a potential wide-ranging inquiry into the assets held on trust and the true nature and extent of Mr Henderson’s interest in the trust assets or funds, including the nature of his business relationship with a number of people.

[9] In short, the bankruptcy was both…

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.

Continue reading Henderson v Attorney-General

Details

AGLC: Henderson v Attorney-General [2017] NZHC 606
Case: [2017] NZHC 606
Decision Date: 30 March 2017

CaseChat Overview and Summary

David Ian Henderson, the plaintiff, brought a case against the Attorney-General, the defendant, in the High Court of New Zealand. The plaintiff sought to determine whether the Official Assignee's request for documents on his laptop and subsequent review of some of those documents breached his rights under s 21 of the New Zealand Bill of Rights Act 1990 (BORA). The court had to decide three issues: whether there was a "search or seizure" for the purposes of s 21 of the BORA, if so, whether any search or seizure "unreasonable" (which imports whether it was unlawful), and if unreasonable, what is an effective and appropriate remedy in the circumstances. The court found that the Official Assignee's exercise of s 171 on 14 June 2011 was both a search and seizure and unreasonable for the purposes of s 21 of the BORA. The court also found that the Official Assignee's continued exercise of control over the plaintiff's private material was a search and/or seizure and unreasonable for the purposes of s 21 of the BORA. The court made declarations and made no order for damages. Costs are reserved.

Orders