Official Assignee v Mathiesen - [2018] NZHC 843

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CIV-2016-476-000049

[2018] NZHC 843

BETWEEN
THE OFFICIAL ASSIGNEE

Applicant

AND

GABRIELLE PAULETTE MATHIESEN

First Respondent

AND

GORDON WALLACE CAMERON McNAB

Second Respondent

Hearing:
16 April 2018

And further submissions received on 19 April 2018

Appearances:

G Slevin for Applicant

First and Second Respondents in person

Judgment:

30 April 2018

JUDGMENT OF DUNNINGHAM J

The application

[1]On 5 April 2018, the Official Assignee applied, without notice, for orders:

(a)arresting the respondents Gordon Wallace Cameron McNab and Gabrielle Paulette Mathiesen (the respondents) for contempt of Court;

(b)imposing such penalty or penalties as the Court sees fit to impose, if satisfied the respondents have been, or are, in contempt of Court;

THE OFFICIAL ASSIGNEE v MATHIESEN [2018] NZHC 843 [30 April 2018]

(c)authorising and requiring any police officer called upon to execute the above orders, or to assist the bailiff in the execution of the orders sealed in this proceeding 5 January 2018 (together, the orders):

(i)to enter the property at 282 Timaru-Pareora Road, Timaru (the property) to give effect to the orders;

(ii)if necessary, to use force to enter the property or any part of it, whether by breaking open doors or otherwise; and

(iii)to carry out the orders with the use of such reasonable force as it may be reasonably necessary to use in such circumstances as may arise; and

(d)ordering the respondents to:

(i)not return to within 500 metres of the property and stop there; and

(ii)not interfere in the process of its sale by the Court.

[2] When the application was received by the Court, Davidson J concluded that it was not appropriate to make any further order without the respondents having the opportunity to be heard on the application. This was because there could be serious consequences for the respondents, including arrest, imprisonment and penalties, if the orders were made.

[3] Davidson J directed that the application be served on the respondents and that application be called on 16 April 2018.

[4] The minute of Davidson J, which was also served on the respondents, clearly set out the purpose of the hearing he had afforded them. In it he said:

[8] This is not a matter of their having “one last opportunity”, but to explain to the Court why the orders now sought should not be made, so there is nothing of which the Court is unaware, and so it is crystal clear to the respondents what will happen if the orders now sought are made.

Background

[5] There is a considerable history to this matter, much of which is not relevant to the present application. That history is set out succinctly in Official Assignee v Mathiesen,1 and I do not propose to repeat it here. Suffice to say that Ms Mathiesen was adjudged bankrupt on 11 June 2013 on the application of her former husband. One of her assets was a debt owed to her by the Sweet…

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 Mathiesen

Details

AGLC: Official Assignee v Mathiesen [2018] NZHC 843
Case: [2018] NZHC 843
Decision Date: 30 April 2018

CaseChat Overview and Summary

The Official Assignee applied for orders to arrest the respondents, Gabrielle Paulette Mathiesen and Gordon Wallace Cameron McNab, for contempt of court. The application was made without notice due to concerns that the respondents would take further steps to frustrate the execution of the orders or damage the property. The Official Assignee sought orders to authorise and require any police officer to enter the property to give effect to the orders, and to carry out the orders with reasonable force if necessary. The respondents opposed the application, raising several objections, including that the application should not have been accepted for filing due to an inconsistency in the intituling of the documents. The court considered the legal issues and found that the respondents were in contempt of court and it was appropriate for arrest warrants to issue. The court also made orders prohibiting the respondents from returning to the property or interfering in the process of its sale by the court.

The court found that the terms of the court order requiring the respondents to give vacant possession of the property were clear and unambiguous. The respondents were served with the order and knew that it required the property to be vacated. The court found that the respondents had not complied with the order and that their actions in barricading themselves into the property demonstrated that they were deliberately disobeying it. The court found that the respondents had a fixed view about the merits of their position that was not, on any objective assessment, rational. The court found that it was necessary to make orders prohibiting the respondents from returning to the property or interfering in the process of its sale by the court. The court made orders accordingly and granted the Official Assignee's application on the terms set out in the judgment.

Orders