Official Assignee v Jamieson - [2014] NZHC 875

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003878 [2014] NZHC 875

IN THE MATTER
of the bankruptcy of KATHLEEN MARY

JAMIESON

BETWEEN

THE OFFICIAL ASSIGNEE Plaintiff

AND

KATHLEEN MARY JAMIESON as trustee of the Spearhead Trust

First Defendant/Applicant

KATHLEEN MARY JAMIESON as trustee of the Castello Trust

Second Defendant/Applicant

AND

HAINES HOUSE REMOVALS LTD Non-Party Respondent

Hearing: 15 April 2014

Appearances:

G A D Neil for Official Assignee
D W Grove for First and Second Applicants
R Mark for Haines House Removals Ltd

Judgment:

1 May 2014

JUDGMENT OF VENNING J Non-Party Costs

This judgment was delivered by me on 1 May 2014 at 10.30 am, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland
Ellis Law, Auckland
R C Mark, Kerikeri

Copy to: D Grove, Auckland

THE OFFICIAL ASSIGNEE v JAMIESON [2014] NZHC 875 [1 May 2014]

Introduction

[1] Kathleen Jamieson, as trustee of the Spearhead and Castello Trusts (Trusts), seeks an order that a non-party, Haines House Removals Limited (Haines), pay the Trusts’ costs of the substantive proceedings and this application.

Background

[2] In December 2006 Haines obtained a judgment in the sum of $40,487.25 (including costs) against Ms Jamieson. Ms Jamieson failed or refused to pay the judgment sum. On 5 September 2007 she was adjudicated bankrupt on Haines’ petition. By that stage the sum due to Haines was $47,215.89 together with the costs of the bankruptcy proceedings.

[3] Both of the Trusts, which were associated with Ms Jamieson, claimed to be creditors of Ms Jamieson. During the course of the bankruptcy the Official Assignee appointed an investigating accountant, Mr Hicks, to analyse material transactions between Ms Jamieson and the Trusts. On 9 July 2011 Mr Hicks concluded that rather than Ms Jamieson owing the Trusts any money, the Trusts owed Ms Jamieson substantial sums. He recommended that demand be made for $147,144 from the Castello Trust, and $93,075 from the Spearhead Trust. The Official Assignee made that demand but Ms Jamieson and the Trusts denied that the Trusts were indebted to her.

[4] On 8 April 2011 Ms Jamieson applied to the High Court to be discharged from her bankruptcy. The Official Assignee opposed the discharge. He had previously filed an objection to her automatic discharge on the basis she had failed or refused to supply all relevant information to him.

[5] In the meantime the Official Assignee had advised Haines, as Ms Jamieson’s principal creditor, of the results of Mr Hicks’ investigation. Haines supported proceedings being issued against the Trusts to recover the sums Mr Hicks considered due to Ms Jamieson. In April 2011 the Official Assignee and Haines (together with Rodney Haines, as guarantor) entered a Deed of Indemnity pursuant to which, and in consideration for the Official Assignee issuing proceedings against the trustees of the

Trusts, Haines and Mr Haines agreed to indemnify the Official Assignee against all fees and costs involved in the proceedings.

[6] On 25 May 2011 the Official Assignee’s…

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 Official Assignee v Jamieson

Details

AGLC: Official Assignee v Jamieson [2014] NZHC 875
Case: [2014] NZHC 875
Decision Date: 1 May 2014

CaseChat Overview and Summary

Kathleen Mary Jamieson, as trustee of the Spearhead Trust and the Castello Trust, sought an order that Haines House Removals Limited, a non-party, pay the Trusts’ costs of the substantive proceedings and the application. Haines had funded the Official Assignee in the bankruptcy proceedings. Jamieson had been adjudicated bankrupt, and the Official Assignee had issued proceedings against the Trusts. Jamieson was discharged from bankruptcy and the Official Assignee discontinued the proceedings. Jamieson then sought costs from Haines.

The court considered whether Haines could be liable for costs as a non-party, and whether the presumption under r 15.23 of the High Court Rules should apply. The court found Haines was not a "pure funder" as it had a personal interest in the proceedings and sought to benefit from them. The court also found that it was reasonable for Haines to have funded the issue of the proceedings, but unreasonable for Haines to have refused to accept that the proceedings should be discontinued once it had received advice on 17 May 2012.

The court concluded that Haines should pay Jamieson’s costs for wasted preparation of three days or $5640. The costs of the application were to lie where they fell.

Orders