Official Assignee v MA

[2018] NZHC 1304

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000375 [2018] NZHC 1304

BETWEEN

THE OFFICIAL ASSIGNEE

Applicant

AND

JIAN GUANG MA

Respondent

Hearing:	On the papers
Judgment:	5 June 2018

JUDGMENT OF NATION J

[1]    The Official Assignee has made an application without notice for an order directing the Registrar of the High Court at Christchurch to issue a letter of request for assistance to the Federal Court of Australia and for an order granting leave to the Official Assignee to begin the proceeding as an originating application. I make an order granting leave to commence the proceeding by way of originating application and for the application to proceed on a without notice basis.

[2]    It is appropriate for the Official Assignee to proceed on a without notice basis because:

(a)        the respondent bankrupt will not be prejudiced by the making of the orders sought which do not affect any substantial or procedural rights reserved to him as a bankrupt;

OFFICIAL ASSIGNEE v JIAN GUANG MA [2018] NZHC 1304 [5 June 2018]

(b)        he was adjudicated bankrupt in New Zealand on his own application and was entitled to be adjudicated so the fact of his bankruptcy is uncontroversial; and

(c)        there is no basis on which he could properly contest the present application.

[3]    The Official Assignee has proved by affidavit that the respondent (the bankrupt) was adjudicated bankrupt on 1 June 2018 on his own application lodged on 29 May 2018. The bankrupt disclosed ownership of a property in Australia situated at 41 Frederick Street, Balwyn, Victoria. The Inland Revenue Department of New Zealand is the largest creditor on the bankrupt’s list of creditors, both in New Zealand and Australia. Legal proceedings have already begun in Australia in relation to the debt owed to the Inland Revenue Department. The Official Assignee reasonably believes that the bankrupt has property in Australia that needs to be investigated and seeks the assistance of the Australian Tax Office in this regard. That assistance can be provided only when the bankruptcy in New Zealand has been recognised by the Australian Courts.

[4]    Article 25, schedule 1, Insolvency (Cross-border) Act 2006 authorises the High Court in New Zealand to seek the assistance of courts in other jurisdictions for the implementation and enforcement of insolvency proceedings in relation to property held in other jurisdictions.

[5] Section 29 Bankruptcy Act 1966 for the Commonwealth of Australia materially provides:

Courts to help each other

(1)      All Courts having jurisdiction under this Act, the Judges of those Courts and the officers of or under the control of those Courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy.

(2)In all matters of bankruptcy, the Court:

(a)   shall act in aid of and be auxiliary to the courts of the external Territories, and of prescribed countries, that have jurisdiction in bankruptcy; and

(b)   may act in aid of and be auxiliary to the courts of other countries that have jurisdiction in bankruptcy.

(3)      Where a letter of request from a court of an external Territory, or of a country other than Australia, requesting aid in a matter of bankruptcy is filed in the Court, the Court may exercise such powers with respect to the matter as it could exercise if the matter had arisen within its own jurisdiction.

…

(4)In this section, prescribed country means:

(a)   the United Kingdom, Canada and New Zealand;

[6]    I am satisfied, on the evidence of the Official Assignee, that the Official Assignee in New Zealand and the High Court in New Zealand does require the assistance of the Court in Australia to investigate the bankrupt’s ownership of assets in Australia and to potentially take whatever steps might be necessary to recover the proceeds of any property sale for the benefit of the Official Assignee in New Zealand.

[7]    I accordingly make an order directing the Registrar of the High Court at Christchurch to issue the letter of request for assistance to the Federal Court of Australia in the form annexed to counsel’s memorandum of 5 June 2018.