Memelink v Official Assignee - [2023] NZHC 2342

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-363

[2023] NZHC 2342

UNDER the Insolvency Act 2006

IN THE MATTER

of an application pursuant to s 238

BETWEEN

HARRY MEMELINK

Applicant

AND

THE OFFICIAL ASSIGNEE

Respondent

CAMILLA WATSON

Interested Party

Hearing: 19 July 2023

Appearances:

Applicant in person

P Chisnall for Respondent
No appearance by or for the Interested Party

Judgment:

25 August 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1] Harry Memelink was adjudicated bankrupt in August 2018. He applies under s 238 of the Insolvency Act 2006 for an order cancelling the Official Assignee’s admission of a claim by the estate of Murray Horlor admitted in the bankruptcy.

[2] Mr Horlor’s estate is represented by the interested party, Camilla Watson, who has declined to participate in this matter. The Official Assignee opposes Mr Memelink’s application.

MEMELINK v THE OFFICIAL ASSIGNEE [2023] NZHC 2342 [25 August 2023]

Statutory framework

[3] Mr Memelink has previously challenged determinations of the Official Assignee in this bankruptcy. In Memelink v The Official Assignee,
Associate Judge Johnston summarised the relevant statutory framework as follows:1

[5] The obligations of the Official Assignee in dealing with claims by unsecured creditors against bankrupt estates are dealt with in s 234 of the Insolvency Act which provides:

234 Assignee must examine creditor’s claim form

(1)The Assignee must examine each creditor’s claim form and the grounds of the debt, unless the Assignee considers it likely that no dividend will be paid to creditors.

(2)After examining the claim form, the Assignee must, as soon as practicable, do 1 or more of the following:

(a)admit the claim, in whole or in part:

(b)reject the claim, in whole or in part:

(c)require further evidence in support of the claim.

[6] …The Official Assignee is obliged to consider creditors’ claim forms and admit or reject the same, in whole or in part, unless she has concluded that there is unlikely to be any funds available to pay unsecured creditors. [T]he Official Assignee may require additional evidence before making a determination.

[7] The authorities indicate that the onus is on the claimant, and that, whilst the Official Assignee is not obliged to engage in a minute analysis of each claim, before accepting a claim, or any part of a claim, she must be satisfied that there is sufficient supporting evidence.

[8] The Official Assignee’s determinations pursuant to s 234 of the Insolvency Act are challengeable pursuant to s 238 which provides:

(1)Court may cancel creditor’s claim

(a)The court may make an order cancelling an admitted creditor’s claim or reducing the amount claimed, if it considers that the claim was improperly admitted.

(b)The court may make the order on the application of the Assignee, the bankrupt, or any creditor.

(c)The court must not make an order under subsection unless the creditor who submitted the claim has been served with the application.

1 Memelink v The Official Assignee [2020] NZHC 2709 at [5]-[9] (footnotes omitted); and…

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 Memelink v Official Assignee

Details

AGLC: Memelink v Official Assignee [2023] NZHC 2342
Case: [2023] NZHC 2342
Decision Date: 25 August 2023

CaseChat Overview and Summary

Harry Memelink, who was adjudicated bankrupt in August 2018, applied for an order cancelling the Official Assignee's admission of a claim by the estate of Murray Horlor. The Official Assignee opposed the application. The estate of Mr Horlor is represented by Camilla Watson, who did not participate in this matter. The key issue before the court was whether the Official Assignee properly admitted the claim by Mr Horlor's estate.

The court found that the Official Assignee's admission of the claim was proper and reasonable. The evidence showed that there was a personal loan from Mr Horlor to the Link Trust No. 1 in the sum of $70,000 in 2012, with interest payable and due to be repaid in 2013. The acknowledgement of debt by the trustees of the Trust established that the debt was owed to Mr Horlor personally. The court was not satisfied that the debt was forgiven or written off by Mr Horlor prior to his death. The court also found that Mr Memelink's arguments regarding counterclaims, limitation periods, and the executors sorting out claims did not undermine the validity of the claim.

The court dismissed Mr Memelink's application for an order cancelling the Official Assignee's admission of the claim and for ancillary orders. The Official Assignee was awarded costs on a 2B basis.

Orders