Henderson v Official Assignee

Case [2015] NZHC 1341


IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH  REGISTRY

CIV-2015-419-000067 [2015] NZHC 1341

BETWEEN

DAVID IAN HENDERSON

Appellant

AND

THE OFFICIAL ASSIGNEE Respondent

Hearing: 20 May 2015

Representation:

D I Henderson (Appellant) - in person
P V Cornegé for the Respondent

Judgment:

12 June 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE ON BANKRUPT'S APPEAL

HENDERSON v THE OFFICIAL ASSIGNEE [2015] NZHC 1341 [12 June 2015]

Table of Contents

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…

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Details
AGLC
Henderson v Official Assignee [2015] NZHC 1341
Case
[2015] NZHC 1341
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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