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Meder v Official Assignee

Meder v Official Assignee

Case [2018] NZHC 821 27 April 2018

Jurisdiction

Contempt of Court

Stay of Proceedings

Inherent Jurisdiction

Administrative Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-1193

[2018] NZHC 821

BETWEEN
MARCUS HENRY MEDER

Applicant

AND

THE OFFICIAL ASSIGNEE

Respondent

Hearing: 6 September 2017

Appearances:

No appearance for Applicant
G Neil and G Montgomery for Respondent

Judgment:

27 April 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 27 April 2018 at 12.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

MEDER v THE OFFICIAL ASSIGNEE [2018] NZHC 821 [27 April 2018]

Introduction

[1] The respondent, the Official Assignee (Assignee), has applied to the Court to use its inherent jurisdiction to stay this proceeding in order to pressure the applicant, Marcus Meder, to comply with orders made by the District Court following Mr Meder being adjudged bankrupt. The application is not based on any alleged lack of substantive merit or procedural defect in the proceeding but seeks the stay for the collateral purpose of purging Mr Meder’s contempt for not complying with the District Court’s orders.

[2] The Assignee says the proposed stay is the only means of exerting effective pressure on Mr Meder to comply with the District Court’s orders and to hand over an inheritance he obtained after he had been adjudicated bankrupt.

[3] Mr Meder was not represented and took no part in the consideration of the Assignee’s application which was heard by me on 7 September 2017 by way of formal proof. On the day before the hearing, Mr Meder sent an email to the Court advising that he was unable to attend the hearing and had been unable to obtain legal representation.

Background

[4]The following summary of facts is drawn from:

(a)An affidavit sworn on 12 June 2017 by Mr Meder in support of his application for leave to review decisions of the Assignee:

(i)Imposing conditions for Mr Meder to meet before the Assignee would agree to assign the right to apply to set aside the judgment adjudicating him bankrupt (bankruptcy judgment); and

(ii)Refusing Mr Meder’s application for consent to be self- employed; and

(b)Affidavits sworn on 12 July 2017 and 18 July 2017 by Anthony Pullen, Deputy Assignee, in opposition to Mr Meder’s application and in support of the Assignee’s application to have Mr Meder’s application stayed.

[5] From 8 June 2007, Mr Meder was a 50 per cent shareholder in a company, Marie Harper 2007 Ltd (Marie Harper), to which Mr Meder provided services.

[6] On 3 November 2008, liquidators were appointed for Marie Harper pursuant to an order of the High Court following an application by the Commissioner of Inland Revenue.

[7] In the course of their investigations, the liquidators became aware of payments made by Marie Harper to Mr Meder under transactions made at a time the liquidators considered Marie Harper to have been insolvent. Accordingly, the liquidators considered those transactions voidable under s 292 of the Companies Act 1993.

[8] On 5 December 2009, the…

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 Meder v Official Assignee

Details

AGLC: Meder v Official Assignee [2018] NZHC 821
Case: [2018] NZHC 821
Decision Date: 27 April 2018

CaseChat Overview and Summary

The Official Assignee applied to the High Court for an order staying the proceedings brought by Marcus Meder until such time as Mr Meder complied with preservation orders made by the District Court. The Official Assignee sought to use the Court’s inherent jurisdiction to punish Mr Meder for contempt of the District Court’s orders. Mr Meder was not represented and did not participate in the hearing of the Official Assignee’s application. The Court dismissed the Official Assignee’s application. The Court held that it had the power to stay its own proceeding in order to punish a contempt of the District Court, but that it should only do so where it was appropriate in the circumstances and in the interests of justice to do so. The Court held that, in the present circumstances, the proposed stay would not be appropriate. In particular, the Court held that the Official Assignee’s request to stay the proceedings would prevent Mr Meder from having heard his challenge to the conditions imposed by the Official Assignee. That was inconsistent with one of the fundamental purposes of the Court, which is to provide access to justice for individuals. The Court also held that the Official Assignee’s request to stay the proceedings was inconsistent with the paramount need of the Court to do justice in the exercise of its powers under the inherent jurisdiction.

Orders