Memelink v Official Assignee - [2020] NZHC 2709

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-363

[2020] NZHC 2709

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Harry Memelink

BETWEEN

HARRY MEMELINK

Applicant

AND

THE OFFICIAL ASSIGNEE

Respondent

Hearing: 16 September 2020

Appearances:

D Livingston for applicant

P Chisnall and C Vinnell for respondent No appearance by or for Bruce Mead

C Tennet in person

A O’Connor for Gambitsis Crombie Ltd G Dewar for Body Corporate 68792

L Hui for Lynx Trustees Ltd (in liquidation)

Judgment:

15 October 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] The applicant, Mr Harry Memelink, applies for orders setting aside determinations of the respondent, the Official Assignee, accepting certain claims by unsecured creditors in his bankruptcy. One of the unsecured creditors — Body Corporate BC 68792 — cross-claims for an order increasing the amount of its claim.

MEMELINK v THE OFFICIAL ASSIGNEE [2020] NZHC 2709 [15 October 2020]

[2] In his notice of application Mr Memelink challenged ten such determinations. However, by the time his application was heard, this had reduced to four. It will be necessary to return to this in dealing with costs.

[3] In the order in which they were dealt with at the hearing, the impugned determinations concerned claims by the following:

Mr Bruce Mead

$

9,903.50

Mr Chris Tennet 34,528

Gambitsis Crombie Ltd 25,770.93

BC 68792 144,175.71

[4] The balance of this judgment will be easier to follow if certain matters are dealt with at the outset.

The statutory framework

[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] There was general agreement between counsel as to the Official Assignee’s responsibilities under that provision. 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. the 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.1

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

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 [2020] NZHC 2709
Case: [2020] NZHC 2709
Decision Date: 15 October 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Memelink v Official Assignee involved Mr. Harry Memelink, who applied for orders to set aside certain determinations by the Official Assignee accepting claims by unsecured creditors in his bankruptcy. The key legal issues centered around whether the Official Assignee's determinations were reasonable and if the claims were adequately supported. The court examined each creditor's claim individually, considering factors such as the sufficiency of evidence, the time-barred nature of some claims, and the legitimacy of the debts.

The court found that the Official Assignee's determination regarding Mr. Bruce Mead's claim was partially incorrect as it included a debt incurred post-bankruptcy. Consequently, Mr. Mead's claim was reduced to $7,273.50. For Mr. Chris Tennet, the court disallowed the portion of his claim that exceeded the six-year limitation period, reducing his claim to $11,952.00. Regarding Gambitsis Crombie Ltd, the court dismissed Mr. Memelink's application, accepting the Official Assignee's acceptance of the claim as credible evidence was provided by the firm's practice manager. Lastly, concerning BC 68792, the court dismissed Mr. Memelink's application and upheld BC 68792's cross-claim, allowing its claim in the sum of $262,451.73.

In summary, the court allowed Mr. Memelink's application in part for the claims of Mr. Mead and Mr. Tennet but dismissed it for Gambitsis Crombie Ltd and BC 68792. The cross-claim by BC 68792 was allowed in full.

Orders