Introduction ..........................................................................................................[1] Travel approval – the regime ..............................................................................[4] Travel approval – the statutory framework [4] The two mandatory considerations [11] The interests of the bankrupt [13] The interests of the creditors [32] The balancing of the bankrupt’s and creditors’ interests [37] The Assignee’s policy in relation to travel approval [42] Mr Currie’s understanding of the legislative policy [45] The standard of review by the Court under s 226 Insolvency Act .................[50] Chronology..........................................................................................................[63] Events of 2014 .....................................................................................................[64] The 26 June 2014 application [65] “Consent will not be forthcoming” [77] The relationship between Mr Henderson and Mr Currie in 2014 [83] Mr Henderson’s Official Information Act request for the ITS policy [91] The Assignee’s failure to make a decision in 2014 [93] The evolution of Mr Henderson’s travel plans [97] The 2015 refusal ...............................................................................................[109] The Assignee’s two main reasons for refusing travel approval [109] Reason 1: lack of corroborative evidence [111] Reason 2: management of a business [114] Mr Currie’s application of Murray v The Official Assignee [128] The concept of approval in principle [135] Mr Vinnell as “the Assignee’s agent” [139] The 2015 refusal – overall conclusion [144]
A way ahead? [147] Costs ..................................................................................................................[148] Order .................................................................................................................[150]

Introduction

[1] David Henderson was adjudicated bankrupt in 2010. He remains bankrupt as the Official Assignee has lodged an objection against his discharge from bankruptcy. Mr Henderson’s public examination is to be heard in August 2015.

[2] Mr Henderson applied to the Assignee for consent to leave New Zealand. The Assignee refused the application.

[3] Mr Henderson now applies to the Court to reverse the Assignee’s decision.

Travel approval – the regime

Travel approval – the statutory framework

[4] Section 433(1)(f) Insolvency Act 2006 establishes an offence when a bankrupt leaves New Zealand without the consent of the Assignee. It provides:

433 Offences in relation to Assignee

(1) A bankrupt (B) commits an offence if B—

…

(f) while a bankrupt and without having first obtained the consent of the Assignee,—

(i) leaves, or attempts to leave, New Zealand, temporarily or permanently; or

(ii) makes preparations for leaving New Zealand, temporarily or permanently.

[5] Regulation 11 Insolvency (Personal Insolvency) Regulations 2007 (the Personal Insolvency Regulations) regulates the bankrupt’s application for consent to leave New Zealand. It provides:

11 Bankrupt's application for Assignee's consent to leave New
Zealand

(1) A bankrupt's application to the Assignee for consent to leave New
Zealand must—

(a) be in writing; and

(b) be signed by the bankrupt; and

(c) contain the following information: (i) the bankrupt's full name:
(ii) the bankrupt's current address, telephone number, and any other contact detail…

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 Official Assignee

Details

AGLC: Henderson v Official Assignee [2015] NZHC 1341
Case: [2015] NZHC 1341
Decision Date: 12 June 2015

CaseChat Overview and Summary

David Ian Henderson appealed a decision of the Official Assignee to refuse his application for consent to leave New Zealand. The Assignee refused the application on the basis that Henderson's travel plans lacked corroborative evidence and appeared to be business related. Henderson argued that the Assignee should have granted him approval in principle. Henderson submitted that the Assignee should have been more flexible in his approach to the application and that the Assignee had not properly considered his interests as a bankrupt. The Official Assignee responded that the refusal of the application was justified and that Henderson had not provided the necessary corroborative evidence and had not applied for consent to enter into business. Henderson appealed to the High Court under section 226 of the Insolvency Act 2006. The Court found that Henderson's application was not handled appropriately in 2014. However, the Court found that the refusal of the application in January 2015 was justified. The Assignee had reasonably required corroborative evidence and had reasonably concluded that Henderson's travel was business related. The Court found that the Assignee had not properly considered Henderson's interests, but this was not determinative of the appeal. The Court dismissed Henderson's application and reserved costs.

Orders