Kirk v Official Assignee

[2020] NZHC 1689

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-33

[2020] NZHC 1689

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of WAYNE STEPHEN KIRK

BETWEEN

WAYNE STEPHEN KIRK

Applicant

AND

OFFICIAL ASSIGNEE

Respondent

Hearing:

13 July 2020

Appearances:

L M Fischer for Applicant

No appearance for Respondent

Judgment:

14 July 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 14 July 2020 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 14 July 2020

KIRK v OFFICIAL ASSIGNEE [2020] NZHC 1689 [14 July 2020]

[1]                 The bankrupt, Wayne Stephen Kirk (Mr Kirk), has applied for an early discharge from bankruptcy. He was adjudicated bankrupt on 4 January 2018 and his statement of affairs was submitted on the same date meaning, in the ordinary course, he would automatically be discharged from bankruptcy on 4 January 2021.

[2]The creditors who have proved in his bankruptcy total $67,508.45.

[3]                 The application had  previously  been  before  the  court  and  Associate Judge Smith, in a Minute of 2 June 2020, recorded that Mr Kirk’s early discharge application had been properly served and advertised.

[4]                 In the Judge’s Minute, he referred to the fact that Mr Kirk had been paying contributions towards his creditors at the rate of $75.00 per week. Mr Kirk has calculated the amount he needs to pay until the automatic discharge date and he proposes to accelerate the process by making a lump sum payment now representing the balance of the weekly payments.

[5]                 Associate Judge Smith directed that Mr Kirk file an updating affidavit as to his financial position and to serve that on the Official Assignee (the Assignee).

The position of the Official Assignee

[6]                 The Assignee has no objection to Mr Kirk’s early discharge and will abide the Court’s decision. The Assignee’s report dated 9 April 2020, records that Mr Kirk has co-operated with the Assignee and there is nothing untoward to report with regard to Mr Kirk’s conduct before or after adjudication.

[7]                 Having received the financial information directed to be filed by Associate Judge Smith, the Assignee has filed a further affidavit (sworn 6 July 2020), advising the information provided means if the Assignee were to re-assess Mr Kirk’s ability to pay contributions, Mr Kirk would be asked to make contributions at the rate of

$330.62 per week.

[8]                 When this matter was called in the Hamilton High Court on 13 July 2020,  Mr Kirk was present with counsel, Ms Fischer. Ms Fischer noted that before the

Assignee set the contributions a bankrupt would be required to make, the bankrupt would have input into that process. However, in the interests of avoiding further delay, Mr Kirk confirmed he did not wish to dispute the revised weekly contribution figure and would make arrangement to pay the increased amount.

Discussion

[9]                 No creditor has opposed the application. As I have said, the Assignee does not oppose and reports nothing in Mr Kirk’s conduct which would stand against the application for early discharge.

[10]              The following passage from ASB v Hogg, sets out the Court’s approach to such applications:1

In conferring a discretion expressed in the broadest terms, the legislation recognises that each case will be different, that the relevant factors may vary from case to case and that the exercise of the discretion must be governed by the circumstances of the particular case having regard to the guidance provided by a consideration of the scheme and purpose of the legislation. In providing for automatic discharge after three years, the legislation recognises that it is not in the public interest that the bankruptcy should endure indefinitely. In providing for earlier discharge, s 108 recognises that continuing the bankruptcy to the end of the three years may not be in the public interest. Whether or not it is will be a matter for decision on the particular facts. In that regard, guidance is provided by s 109(2) which lists matters on which the assignee is to report to the High Court in such a case. The Court is to consider the assignee’s report as to the affairs of the bankrupt, the causes of the bankruptcy, the manner in which the bankrupt has performed the duties imposed on him or her under the Act and his or her conduct both before and after the bankruptcy, and also as to any other fact, matter or circumstance that would assist the Court in making its decision. Clearly the Court apprised of the matter will consider the legitimate interests of the bankrupt, the creditors and wider public concerns, but it is neither required nor entitled to impose threshold requirements in the exercise of the discretion so as to derogate from breadth of the powers conferred under s 110. The applicant has the onus, in the sense of adducing evidence, to show good cause for ordering an early discharge, but his obligation goes no further than that.

[11]              Mr Kirk is 56 years old and, as I have said, he has been making weekly contributions as required by the Assignee. Mr Kirk is prepared to make a lump sum payment representing the total of the revised Assignee’s payments through to the date

1      ASB v Hogg [1993] 3 NZLR 156 (CA) at 157.

of  Mr Kirk’s automatic discharge.    Ms Fischer has quantified those payments at

$8,265.50.

[12]              Given  the  co-operation  referred  to  in  the  Assignee’s  report,  I  accept  Ms Fischer’s submission there is very limited risk to the commercial community if Mr Kirk is discharged early.

Order

[13]              Accordingly, in the circumstances of this case, I consider it appropriate that there be an order under s 294 of the Insolvency Act 2006 discharging Wayne Stephen Kirk from bankruptcy. The order will take effect on Ms Fischer filing with the Registrar, confirmation from the Assignee’s office that Mr Kirk has paid the sum of $8,265.50 to the Assignee in cleared funds.

Associate Judge Lester

Solicitors:

Harkness Henry, Hamilton

Official Assignee, Christchurch