Official Assignee v John Lockley Transport Limited

[2013] NZHC 1208

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-257 [2013] NZHC 1208

BETWEEN

OFFICIAL ASSIGNEE Applicant

AND

JOHN LOCKLEY TRANSPORT LIMITED

First Respondent

KIWI ASSET FINANCE LIMITED Second Respondent

Hearing:	24 May 2013
Appearances:	Mr P Cornege for Official Assignee No appearance for First or Second Respondent
Judgment:	24 May 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

OFFICIAL ASSIGNEE v JOHN LOCKLEY TRANSPORT LIMITED & Anor [2013] NZHC 1208 [24 May

2013]

[1]      The  Official  Assignee  has  filed  an  originating  application  for  an  order pursuant to s 207 of the Insolvency Act 2006 for the transfer of property to him, being property formerly owned by bankrupted persons, John Edward Lockley and Irene Mary Lockley. Those persons were adjudicated bankrupt on 17 February 2012. The Official Assignee further seeks an order under s 206 cancelling irregular transactions, those being transactions between the bankrupts and the first respondent. The bankrupts transferred trucks and ancillary equipment which they operated as part of their freight business to the first respondent on two occasions – 14 November

2011 and 20 February 2012.  I am satisfied that the bankrupts were insolvent at the time when that transaction took place.

[2]      The applications are unopposed so far as the first respondent is concerned. The second respondent’s interest in the proceedings arises from the fact that after the transfer to the first respondent had occurred it took security and provided finance to the first respondent.   It acted in good faith and without notice in so doing.   The interest of the second respondent is to ensure that its security over the property transferred to the first respondent is not affected.  It seems to me that if the orders are made against the first respondent that the cancellation of the transaction and the transfer of the property to the Official Assignee would occur on the basis that the transfer was subject to the second respondent’s security remaining intact and that position is accepted by the Official Assignee.

[3]      I am satisfied that the orders ought to be made on an undefended basis. There will be orders in terms of the two applications.  The applicant seeks costs on both originating applications and I accept that an order for 2B costs is appropriate and that is the order that I make.  As well the applicant is to have disbursements as fixed by

the Registrar.

J.P. Doogue

Associate Judge