Official Assignee v Mathiesen - [2017] NZHC 3108

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-476-000049 [2017] NZHC 3108

BETWEEN
THE OFFICIAL ASSIGNEE

Applicant

AND

GABRIELLE PAULETTE MATHIESEN (BANKRUPT) AND GORDON WALLACE CAMERON MCNAB AS TRUSTEES OF THE SWEET PEA FAMILY TRUST

First Respondents

GALLAWAY COOK ALLAN Second Respondent (ENDED)

JAN HENDRIK MATHIESEN Third Respondent

Counsel:
G E Slevin for Applicant

G P Mathiesen and G W McNab In Person as First Respondents

Judgment:

13 December 2017

JUDGMENT OF GENDALL J

OFFICIAL ASSIGNEE v MATHIESEN [2017] NZHC 3108 [13 December 2017]

Introduction

[1] In a judgment I issued on 26 September 2017 (following a hearing on 8 August

2017) the application in this proceeding by the applicant the Official Assignee succeeded. An order was made with respect to a property of the Sweet Pea Trust (the Trust Property) in the following terms:

[61] …An order is now made directing the sale of the Trust Property at 282
Timaru-Pareora Road, being Lot 1, DP433956, LINZ Title Identifier 528849, by this Court.

[2] At para [62] of that 26 September 2017 judgment I noted that directions were now required on two matters. These were first, the process and terms of the sale of the Trust Property and, secondly, the orders sought in the application by the Official Assignee for vacant possession of the Trust Property to be given up. In this judgment I now address and give those directions.

Process and further directions

[3] In doing so I note the further directions in my 26 September 2017 judgment at para [63] which stated:

[63] Directions noted at [62] above are now made as follows:

(a) The Official Assignee by 10 October 2017 is to file and serve her/his memorandum setting out her/his submissions and argument in support of the orders and directions sought in terms of [62](a) and (b) above.

(b) Mr McNab and Ms Mathiesen are, by 31 October 2017, to file and serve a memorandum setting out their submissions and arguments regarding these orders and the directions sought by the Official Assignee.

(c) Those memoranda are then to be provided to me and, in the absence of either party indicating they wish to be heard further with respect to those issues, I will give my decision with respect to the further directions and orders sought by the Official Assignee on the basis of all the material then before the Court.

[4] On 10 October 2017 the Official Assignee filed in this Court a detailed memorandum setting out submissions in support of the sale and vacant possession orders sought in compliance with para [63](a) noted above.

[5] Mr McNab and Ms Mathiesen, however, have not filed any memorandum setting out submissions and arguments directed at the orders and directions sought by the Official Assignee. Originally, as noted in para [63](b) above, this was to be completed by 31 October 2017. On 17 October 2017, I had issued a minute in this proceeding again drawing the attention of Ms Mathiesen…

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 [2017] NZHC 3108
Case: [2017] NZHC 3108
Decision Date: 13 December 2017

CaseChat Overview and Summary

The Official Assignee sought directions and orders for the sale of property held by the Sweet Pea Family Trust, and vacant possession of the property. The first respondents were Gabrielle Mathiesen and Gordon Wallace Cameron McNab as trustees of the Sweet Pea Family Trust. The property in question was located at 282 Timaru-Pareora Road. The Official Assignee sought to sell the property by public auction after a marketing period and to obtain vacant possession of the property in order to facilitate the sale. The court considered the submissions of the Official Assignee and the absence of submissions from the respondents. The court gave directions for the sale of the property to be conducted by public auction after a six week marketing period by a suitably qualified real estate agent appointed by the Registrar/Sheriff in consultation with the Official Assignee. The terms of sale were to follow the draft terms and conditions attached as Schedule 1 subject to minor adjustment thought appropriate after consultation between the Registrar/Sheriff and the Official Assignee. The court ordered that the property be vacated by no later than 16 February 2018. The court awarded costs to the Official Assignee on a category 2B basis to be paid by the respondents.

Orders