Mu v Official Assignee - [2015] NZHC 3108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2149 [2015] NZHC 3108

UNDER s 226 of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Danni Mu

BETWEEN

DANNI MU Applicant

AND

OFFICIAL ASSIGNEE Respondent

Hearing: 30 November 2015

Appearances:

Ms Mu applicant in person
Ms K Morrison and Mr J Gould for the respondent

Judgment:

8 December 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
08.12.15 at 5 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MU v OFFICIAL ASSIGNEE [2015] NZHC 3108 [8 December 2015]

Introduction

[1] The applicant, Ms Mu was adjudicated bankrupt by order of the High Court at Auckland on 7 May 2015 on the application of Body Corporate 312431. On the same day, Ms Mu filed a statement of claim commencing proceedings under CIV-2015-404-995 (“the Proceeding”).

[2] Upon Ms Mu being adjudicated bankrupt, all her property, including her rights and powers in respect of such property, vested in the Official Assignee (“the Assignee”).1 As a result, the Court directed the Proceeding be served on the Assignee, who was then to advise the Court what steps he wished to take in the Proceeding.

[3] Following an investigation into Ms Mu’s affairs and the issues raised in the Proceeding, the Assignee filed a memorandum on 20 August 2015 recording that he had resolved not to take any steps in the Proceeding (“the Decision”). On 21 August
2015, the Assignee wrote to Ms Mu to advise her of the Decision.

[4] On 1 September 2015, the Court issued a minute which recorded:

[1] Danni Mu, the plaintiff, was adjudicated bankrupt on 7 May 2015. Her causes of action in this proceeding vested in the Official Assignee. On
20 August 2015, the Official Assignee filed a memorandum advising that he has resolved not to take any steps in the proceeding. The effect of that is that the proceeding is discontinued.

[5] Ms Mu now appeals pursuant to s 226 of the Insolvency Act 2006 against the determination of the Assignee not to continue with the proceeding.

Background to the Proceeding

[6] The background to the Proceeding arises from Ms Mu’s ownership of one of

48 units in a residential development at Normanby Road, Mt Eden, Auckland. That property is known as “Normanby Mews”. The body corporate for that property, Body Corporate 312431 (“the Body Corporate”), is one of the defendants in the
proceeding which Ms Mu has filed.

1 Insolvency Act 2006, s 101.

[7] Normanby Mews is a non-weathertight building. In 2009 the Body Corporate commenced a proceeding against various parties involved in the construction of Normanby Mews alleging weather-tightness problems.

[8] In May 2013, the Body Corporate settled its leaky building proceeding for a confidential sum.

[9] On 4 December 2014, the Body Corporate filed a proceeding seeking approval of its scheme to complete a re-clad of Normandy Mews under s 74 of the Unit Titles Act 2010. Asher…

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 Mu v Official Assignee

Details

AGLC: Mu v Official Assignee [2015] NZHC 3108
Case: [2015] NZHC 3108
Decision Date: 8 December 2015

CaseChat Overview and Summary

The case of Mu v Official Assignee involved Danni Mu, who was adjudicated bankrupt, appealing against the decision of the Official Assignee not to proceed with a legal proceeding she had initiated. The legal issues centered on whether the Assignee's decision to discontinue the proceeding was lawful and whether the court should intervene under s 226 of the Insolvency Act 2006. The Assignee had determined that the proceeding lacked merit and would not proceed due to the lack of available assets and the validity of the body corporate's actions. The court found that the Assignee had exercised their discretion appropriately, considering the lack of available assets and the validity of the body corporate's actions. The allegations made by Ms Mu did not present a compelling case for the court to overturn the Assignee's decision. The appeal was dismissed, and the decision of the Assignee was upheld.

Orders