Official Assignee v Koedyk - [2024] NZHC 1198

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2024-470-26

[2024] NZHC 1198

UNDER the Administration Act 1969

IN THE MATTER

of the deceased estates of Derek Koedyk and Heather Margaret Koedyk

BETWEEN

THE OFFICIAL ASSIGNEE

Applicant

AND

WAYNE GERARD KOEDYK AS

EXECUTOR OF THE ESTATE OF DEREK KOEDYK

First Respondent

WAYNE GERARD KOEDYK AS EXECUTOR OF THE ESTATE OF

HEATHER MARGARET KOEDYK

Second Respondent

Hearing: 13 May 2024

Appearances:

G S Caro for Applicant

Judgment:

15 May 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 15 May 2024 at 10am.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
G S Caro, Auckland

THE OFFICIAL ASSIGNEE v KOEDYK [2024] NZHC 1198 [15 May 2024]

Introduction

[1] This matter concerns the administration of the bankrupt estate of Wayne Gerard Koedyk who was adjudicated bankrupt on 17 May 2021.

[2] Mr Koedyk is the executor of his parents’ deceased estates and is a beneficiary in both estates. His interests as beneficiary under both estates vested in the Assignee upon his adjudication in bankruptcy.

[3] The Assignee has asked Mr Koedyk in his capacity as executor of the two deceased estates to provide accounts of the deceased estates, but the requests have been ignored.

[4] The Assignee now seeks an order compelling Mr Koedyk to provide accounts for each of the deceased estates. The orders are sought under s 44 of the Administration Act 1969 and r 27.32(1) of the High Court Rules 2016.

[5] The proceeding was served on Mr Koedyk on 8 March 2024. He has taken no steps.

[6]The matter came before me for a formal proof hearing.

[7]I adopt the timeline set out in the memorandum of counsel for the Assignee.

Background

[8] The last wills of Derek Koedyk and Heather Margaret Koedyk were signed on 28 November 2000. Both wills appointed Mr Koedyk as executor and bequeathed him a one quarter share in the residuary estate.

[9] Derek Koedyk died on 15 April 2015. Probate was granted to Mr Koedyk on 6 July 2015.

[10] Heather Margaret Koedyk died on 14 August 2019. That year, Mr Koedyk was granted probate over his mother’s estate.

[11] On 26 November 2019, a half share in the proceeds of the sale of the family home ($308,850.38) was paid to the deceased estate of Derek Koedyk. That same day a half share in the proceeds of the sale of the family home ($306,925.38) was paid to the deceased estate of Heather Margaret Koedyk.

[12]On 17 May 2021, Mr Koedyk was adjudicated bankrupt.

[13] When filing his statement of affairs on 29 March 2022, Mr Koedyk disclosed his interest in his mother’s deceased estate saying, “I have relinquished my share in favour of my children”. Mr Koedyk says that the share remains in the bank account of his mother’s estate.

[14] On 1 July 2022, a letter was sent from the Assignee’s solicitor to Mr…

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 Koedyk

Details

AGLC: Official Assignee v Koedyk [2024] NZHC 1198
Case: [2024] NZHC 1198
Decision Date: 15 May 2024

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether Wayne Gerard Koedyk, as the executor of the deceased estates of Derek Koedyk and Heather Margaret Koedyk, should be compelled to provide accounts of those estates to the Official Assignee. The Official Assignee, who was acting in the capacity of the bankruptcy estate of Wayne Gerard Koedyk, sought the accounts under Section 44 of the Administration Act 1969 and Rule 27.32(1) of the High Court Rules 2016. The Official Assignee argued that as the executor, Wayne had failed to provide the requested accounts despite multiple requests and that this non-compliance hindered the Assignee's ability to realise the property for the benefit of the bankruptcy estate. The court had to decide if the Official Assignee was entitled to compel Wayne to provide the accounts of the deceased estates and whether the application was made within a reasonable time frame.

The court examined the timeline of events and the relevant statutory and rule provisions. It found that the Official Assignee had a legitimate interest in the accounts due to Wayne's status as both the executor and a beneficiary of the deceased estates, which vested in the Assignee upon Wayne's bankruptcy adjudication. The court noted that Wayne had not provided any accounts despite repeated requests from the Official Assignee and that the delay in seeking the order was justified given the circumstances. The court determined that it was in the interests of justice to extend the time limit for making the application under Rule 1.19 of the High Court Rules 2016. The court concluded that the Official Assignee was entitled to the information sought and that Wayne's refusal to provide the accounts constituted a breach of his duty under the Insolvency Act.

The court granted the Official Assignee permission to commence the proceedings by way of an originating application and extended the time limit for making the application. It ordered Wayne to file true and perfect inventories and accounts of the deceased estates of Derek Koedyk and Heather Margaret Koedyk within 28 days of the service of the order, verified by affidavit. The court also reserved leave for the Official Assignee to apply for further orders and made an order for costs in favour of the Official Assignee on a 2B basis.

Orders