Official Assignee at Hamilton v Fawcett

[2014] NZHC 27

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-28 [2014] NZHC 27

IN THE MATTER             of the bankruptcy of Christopher Louis

Fawcett

BETWEEN  THE OFFICIAL ASSIGNEE AT HAMILTON

Plaintiff

ANDCHRISTOPHER LOUIS FAWCETT First Defendant

ANDJEC NO 1 LIMITED Second Defendant

ANDJEC NO 3 LIMITED Third Defendant

ANDPETER MATTHEW GRANVILLE Fourth Defendant

ANDANZ NATIONAL BANK LIMITED Fifth Defendant

ANDMORTGAGE HOLDING TRUST COMPANY LIMITED

Sixth Defendant

Hearing:                   10 December 2013

Appearances:           First Defendant in person

C T Gudsell QC and P V Cornege for Official Assignee

Judgment:                30 January 2014

JUDGMENT OF PETERS J [Application for Stay]

This judgment was delivered by Justice Peters on 30 January 2014 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

OFFICIAL ASSIGNEE v FAWCETT [2014] NZHC 27 [30 January 2014]

[1]      This is an application by the First Defendant (“Mr Fawcett”) for a stay of this proceeding.

[2]      The  application  is  made  on  the  ground  that  in  18 November  2013  the Ministry of Business and Innovation brought criminal charges (“criminal charges”) against Mr Fawcett (and others).  Mr Fawcett submits that there is a risk that he will be prejudiced in his defence of those charges and/or this proceeding if both matters continue at the same time.

[3]      The Plaintiff (“OA”) opposes the granting of a stay on the basis that there is no risk of prejudice to Mr Fawcett if this proceeding continues, because there is no prospect of an overlap between the evidence relevant to the criminal charges and that relevant to this proceeding.  The criminal charges are brought on the basis that, from October 20011 onwards,  Mr Fawcett breached  obligations imposed on  him as a consequence of bankruptcy.

[4]      In  contrast,  in  this  proceeding  the  OA seeks  to  recover  a  debt  of  some

$370,000, alleged to be due as a result of events prior to 16 December 2008.

[5]      I accept the OA’s submission.  I am satisfied that the different matters at issue mean that there is no real risk of prejudice to Mr Fawcett if this proceeding continues whilst the criminal charges are on foot.  I dismiss this application accordingly.

[6]      Mr Fawcett having been  unsuccessful, he is required to pay costs to  the Official  Assignee  on  a  2B  basis,  together  with  disbursements  as  fixed  by  the Registrar in the event of dispute.

..................................................................

M Peters J

Solicitors:         Almao Douch, Crown Solicitor, Hamilton

Counsel:           C T Gudsell QC, Hamilton

Copy to:           First Defendant