Lafferty aka Knight v Official Assignee - [2018] NZHC 1944

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-169

[2018] NZHC 1944

UNDER the Insolvency Act 1967

IN THE MATTER

of an appeal from the decisions of the Official Assignee

BETWEEN

MIKE LAFFERTY also known as MICHAEL HELSBY KNIGHT

Appellant

AND

OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF MICHAEL HELSBY KNIGHT

Respondent

Hearing: 27 July 2018

Appearances:

Appellant in person

G S Caro for the Respondent

Judgment:

1 August 2018

JUDGMENT OF GORDON J

This judgment was delivered by me on 1 August 2018 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Ministry of Business, Innovation and Employment, Auckland Copy To: Appellant

LAFFERTY (aka) HELLSBY-KNIGHT v OFFICIAL ASSIGNEE [2018] NZHC 1944 [1 August 2018]

Introduction

[1] The appellant, Mr Lafferty, appeals under s 86 of the Insolvency Act 1967 (the Act) against two decisions of the Official Assignee refusing two separate applications by Mr Lafferty to enter or carry on business under s 62(1)(a) of the Act.1

[2] Mr Lafferty, who was formerly known as Michael Knight or Michael Helsby- Knight, appeared on his own behalf. He says he has changed his name by deed poll.

[3] For the purposes of this judgment, I shall refer to the appellant as Mr Lafferty. However, he is the same person as the Michael Knight or Michael Helsby-Knight named in judgments to which I shall shortly refer.

[4]The Official Assignee opposes the appeal.

Background

[5] On 14 February 2001, Mr Lafferty was adjudicated bankrupt. He has remained bankrupt ever since.

[6] On 9 November 2007, Associate Judge Doogue dismissed Mr Lafferty’s application for an order discharging him from bankruptcy.2 The Judge concluded that it was not in the public interest or the interests of commercial morality to grant the order.3 He also stated that Mr Lafferty’s conduct in the course of bankruptcy did not justify the grant of the order.4 Many of the Judge’s comments were prescient. I set out in some detail a number of paragraphs of his judgment. They include a history of Mr Lafferty’s offending to that point:

[9] … Mr Malarao made extensive reference to the report that had been filed by the Official Assignee. The main issues that he brought out were that Mr Knight has an extensive criminal history of offending. He noted that Mr Knight had been convicted as long ago as May 1985 of fraudulently using a document to obtain a pecuniary advantage. Mr Knight has spent a considerable amount of his time in Australia. He has been bankrupted there twice. In 1990

1 As Mr Lafferty was adjudicated bankrupt on 14 February 2001, the Insolvency Act 1967 governs his applications, rather than the Insolvency Act 2006. See Insolvency Act 2006, s 444(2).
2 Knight v Independent New Auckland Ltd HC Auckland B1256-IM00, 9 November 2007.
3 At [30].
4 At [30].

he was convicted of managing a company when prohibited. He has been banned indefinitely in…

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: [2018] NZHC 1944
Decision Date: 1 August 2018

CaseChat Overview and Summary

Mike Lafferty, also known as Michael Helsby Knight, appeals against two decisions of the Official Assignee in Bankruptcy refusing his applications to enter or carry on business. The Official Assignee had refused two separate applications by Mr Lafferty to enter or carry on business under s 62(1)(a) of the Insolvency Act 1967. The Official Assignee declined the applications because of the risk to the public due to Mr Lafferty's history of offending. The Official Assignee also noted that Mr Lafferty had been trading while bankrupt without consent. Mr Lafferty submits that the Official Assignee's decisions were unfair and unreasonable. He claims that the Official Assignee is not acting in good faith for either the public or him as a bankrupt. The Official Assignee submits that Mr Lafferty cannot satisfy the standard required on appeal. He reiterates his prior concerns about Mr Lafferty's offending history and submits there is too much risk in allowing Mr Lafferty to carry on the proposed businesses.

The court found that there was no error of law or principle, no taking into account of irrelevant considerations, no failure to take into account relevant considerations, and no decision that was plainly wrong. The court dismissed the appeal and found that the Official Assignee, as the successful party, is entitled to costs. The court encourages the parties to agree on costs and file a joint memorandum.

Orders