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MacKenzie v MacKenzie

MacKenzie v MacKenzie

Case [2025] NZHC 2781 24 September 2025

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-374

[2025] NZHC 2781

BETWEEN
BRIAN DOUGLAS MACKENZIE

Applicant/Judgment Debtor

AND

HEATHER JOY MACKENZIE

Respondent/Judgment Creditor

Hearing: 28 July 2025

Appearances:

M Taylor for the Applicant/Judgment Debtor

D G Hayes for the Respondent/Judgment Creditor

Judgment:

24 September 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to set aside a Bankruptcy Notice]

This judgment was delivered by me on 24 September 2025 at 3:00pm

Pursuant to Rule 11.5 of the High Court Rules 2016

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

Solicitors:
Blackwells Lawyers (Simon Blackwell), Newmarket, Auckland, for the Applicant/Judgment Debtor Hunwick Law, Hamilton, for the Respondent/Judgment Creditor

Counsel:
Matt Taylor, Meadowbank, Auckland, for the Applicant/Judgment Debtor David G Hayes, Taupo, for the Respondent/Judgment Creditor

MACKENZIE v MACKENZIE [2025] NZHC 2781 [24 September 2025]

Application

[1] This is an application by the judgment debtor, Brian Douglas MacKenzie (Brian), to set aside the bankruptcy notice dated 3 January 2025 issued by the judgment creditor, Heather Joyce MacKenzie (Heather).1

Background

[2] This application is one of a number which have been before this Court as a result of the bankruptcy of Brian’s cousin, Mr Malcolm MacKenzie (Malcolm). Heather is Malcolm’s former wife.

[3] Following the death of Malcolm’s father, Mr Donald MacKenzie, Malcolm was involved in litigation with his siblings in relation to his entitlement as a beneficiary to assets held by a trust called the Pencarrow Trust (the Trust Litigation) and his father’s residual estate (the Estate Litigation) in which he contested his entitlement under his father’s will.

[4] In approximately mid-2016, the Trust Litigation was settled out of Court. Malcolm was paid around $935,000 under the agreed settlement arrangements.

[5] The Estate Litigation proceeded to a hearing and Malcolm was unsuccessful. Consequently, in around August 2018, the Court awarded costs in favour of his siblings of approximately $224,000.

[6] Brian provided substantial support and assistance to Malcolm over a number of years during the Trust Litigation and the Estate Litigation. Brian maintained throughout that it was agreed between him and Malcolm that he was to be compensated for the work and services provided.

1 Due to the commonality of surnames in this case, the parties are referred to by their first names. No disrespect is intended.

[7] Malcolm made two payments to Brian, each of $150,000, one in August 2016, and one in May 2017. These payments were made from the settlement proceeds Malcolm received in the Trust Litigation settlement. Brian however accepts that these payments, totalling $300,000, were loans to him from Malcolm.

[8] In approximately September 2018, shortly after Malcolm’s unsuccessful Estate Litigation, Malcolm asked Brian to assign these loans to Heather. Accordingly, a document dated 29 September 2016 was prepared and signed by the parties to record that the two sums, advanced by Malcolm to Brian, were to be owed to Heather (the Loan Assignment).

[9]On 30 November 2018 Malcolm went into voluntary…

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 MacKenzie v MacKenzie

Details

AGLC: MacKenzie v MacKenzie [2025] NZHC 2781
Case: [2025] NZHC 2781
Decision Date: 24 September 2025

CaseChat Overview and Summary

The case of MacKenzie v MacKenzie involves an application by Brian Douglas MacKenzie, the judgment debtor, to set aside a bankruptcy notice issued by Heather Joy MacKenzie, the judgment creditor. The application stems from a complex web of litigation involving Brian’s cousin, Malcolm MacKenzie, who was involved in disputes over his father’s trust and estate. Following Malcolm’s bankruptcy, Heather pursued Brian for a loan that Malcolm had assigned to her, resulting in a judgment against Brian. This judgment forms the basis for the bankruptcy notice, which Brian seeks to set aside.

The primary legal issue before the court was whether Brian had a genuine cross claim against Heather that could not be raised as a defence in the proceedings leading to Heather's judgment. Brian argued that he had a set-off claim against Malcolm’s bankruptcy estate for $225,000 plus GST, which could potentially exceed the amount owed under the loan. Heather, on the other hand, maintained that the finality of the judgment should prevent the bankruptcy notice from being set aside and argued that any set-off claim was speculative.

The court found that it was reasonably arguable that the judgment in favour of Heather could be challenged if the Official Assignee’s applications to cancel the Loan Assignment were successful. If the Loan Assignment was cancelled, the remaining loan balance would be payable to the Official Assignee rather than Heather. Furthermore, the court held that Brian had a genuine set-off claim that could be asserted against the Official Assignee’s claim for the outstanding loan balance. The court considered it necessary to stay the bankruptcy notice until the outcome of the Official Assignee’s applications to prevent a potential injustice.

Accordingly, the court stayed the bankruptcy notice until the determination of the Official Assignee’s applications. Following the determination of those applications, either party could return to court to address the bankruptcy notice. The court also ordered that costs should follow the event, with counsel to endeavour to agree on costs within a specified period.

Orders