Miah v Official Assignee - [2013] NZHC 2726

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-003111 [2013] NZHC 2726

BETWEEN ABDUR MIAH Appellant

ANDOFFICIAL ASSIGNEE Respondent

Hearing: 16 October 2013

Appearances: R J Hooker for the Appellant
G Neil/M Hmmer for the Respondent

Judgment: 21 October 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
21.10.13 at 4:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

ABDUR MIAH v OFFICIAL ASSIGNEE [2013] NZHC 2726 [21 October 2013]

Background

[1] The appellant, Mr Miah, was adjudicated bankrupt on 4 May 2007. At that time he was the owner of a life insurance policy on the death of his wife. Mrs Miah died on 22 May 2007. The life policy value was $2M plus accumulated interest.

[2] Upon his bankruptcy all of Mr Miah’s property including the life insurance

policy in question vested in the Official Assignee (the Assignee).

[3] The insurer (AXA) declined to pay out to the Official Assignee the sum due under the life policy. AXA claims the life policy application contained a number of material misstatements or non disclosures regarding Mr and Mrs Miah’s financial position and occupation; that AXA was induced to enter into the contract of insurance due to those statements; and that the misstatements were material to the risk insured under the policy.

[4] The Assignee considered and determined that AXA was correct to decline to payout on the policy and treated the property in the policy as abandoned.

[5] Mr Miah wishes to test before the Court the claim on the AXA policy and seeks an assignment of the policy on terms and conditions.

[6] Those terms and conditions have been the subject of extensive correspondence and communication between the Assignee and his lawyers Meredith Connell, and Mr Miah and his lawyer, Mr Hooker.

[7] It is claimed on behalf of Mr Miah that the creditors in his bankrupt estate totalled $900,000 and that the value of the life policy was more than $2M; therefore at all material times he had an interest in the surplus of his bankrupt estate.

[8] On 16 and 17 May 2013 Mr Miah proposed to the Assignee that the policy be assigned to him. On 20 May 2013 the Assignee declined to assign the policy to Mr Miah on the terms proposed on behalf of Mr Miah.

[9] It is the case for Mr Miah that the Assignee is wrong in law and/or fact and his decision is unreasonable and that the Assignee failed to take into account relevant considerations.

[10] Although Mr Miah’s application calls in aid s 226 of the Insolvency Act 2006 it now appears to be accepted that the appropriate provision for consideration is s 86 of the Insolvency Act 1967 because the 2006 Act came into force after the date of Mr Miah’s bankruptcy.

[11] Issues in this case focus upon the principles the Court should use upon appeal. Case authority tends to indicate that the Court’s have taken a…

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 Miah v Official Assignee

Details

AGLC: Miah v Official Assignee [2013] NZHC 2726
Case: [2013] NZHC 2726
Decision Date: 21 October 2013

CaseChat Overview and Summary

Abdur Miah, a bankrupt, appeals against the decision of the Official Assignee (the Assignee) to refuse his request to assign the bankrupt estate's interest in a life insurance policy held by AXA. The Assignee considered that AXA had a strong claim to avoid the policy and declined to assign the policy to Mr Miah on the terms proposed. The issues in this appeal include the appropriate principles the Court should use upon appeal and the correct approach under s 86 of the Insolvency Act 1967. The evidence presented suggests that Mr Miah had significant misrepresentations in the life insurance application, and legal advice indicates that AXA had a strong case to avoid the policy. The Assignee exercised its discretion and decided not to assign the policy to Mr Miah, requiring an indemnity and security for any costs or expenses that might arise from the assignment. The Court reviewed the evidence and submissions, considering the Assignee's duty to act in the interests of creditors and the potential risks involved in the assignment. The Court found that the Assignee's decision not to assign the policy was reasonable, taking into account the potential risks and consequences for the bankrupt estate's creditors. The appeal is dismissed, and costs are awarded to the Assignee on a 2B basis together with disbursements as approved.

Orders