Official Assignee v Mathiesen - [2017] NZHC 2349

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2016-476-000049 [2017] NZHC 2349

BETWEEN
THE OFFICIAL ASSIGNEE

Applicant

AND

GABRIELLE PAULETTE MATHIESEN AND GORDON WALLACE MCNAB First Respondents

GALLAWAY COOK ALLAN Second Respondent (ENDED)

JAN HENRIK MATHIESEN Third Respondent

Hearing:
8 August 2017

Memoranda:
From the Applicant - 15 August 2017
From the First Respondents - 15 September 2017

Appearances:

G E Slevin for Applicant
G W McNab - Appears in Person for himself and

G P Mathiesen as First Respondents

No Appearance for Third Respondent

Judgment:

26 September 2017

JUDGMENT OF GENDALL J

Introduction

[1] Before the Court are two applications:

(a) An application by the Official Assignee filed 19 September 2016 seeking orders directing the sale by the Court of a property belonging
to a family trust and regarding payment of certain held funds.

OFFICIAL ASSIGNEE v MATHIESEN [2017] NZHC 2349 [26 September 2017 ]

(b)An application by the first respondents seeking a stay or dismissal of the Official Assignee’s application noted above for want of jurisdiction.

[2] The second-named first respondent Gordon Wallace McNab (Mr McNab) appeared at this hearing before me in person and indicated he had authority to represent and speak also on behalf of Gabrielle Paulette Mathiesen (Ms Mathiesen), as present trustees of a Trust, known as the Sweet Pea Family Trust, to which I will refer below. He said Ms Mathiesen was not present in Court today purely because she was in Norway pursuing certain matters with her ex-husband the third respondent.

[3] Ms Mathiesen was adjudicated bankrupt by order of this Court on 11 June

2013. Mr Slevin appeared as counsel for the Official Assignee. There was no appearance for the third respondent Jan Henrik Mathiesen (Mr Mathiesen).

[4] Both of the applications noted above are opposed.

Preliminary matters

[5] At the outset, there are several preliminary matters relating to this proceeding which I now address.

[6] The first relates to recusal. This concerns a request at the outset from Ms Mathiesen and Mr McNab that I might recuse myself from hearing this matter. As best I can tell, this recusal request was advanced for reasons which revolved essentially around the fact that up to 1997 I was in legal practice in Hamilton and previously in partnership with a Mr David Jecks. Mr David Jecks is the father of a Mr Stewart Jecks who, it seems, acted for Mr and Ms Mathiesen prior to and around the time of their separation.

[7] I considered this request but was satisfied, however, and confirmed at the outset that matters raised seemed to me to be essentially irrelevant here, and further, that in any event, no proper grounds existed for my being required to recuse myself

with respect to hearing this proceeding. I confirmed this to all parties and the hearing proceeded.

[8] Next, the hearing of the applications before me was set down for one day and commenced at 10 a.m. on 8 August 2017. At the conclusion of that day, largely as a…

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 2349
Case: [2017] NZHC 2349
Decision Date: 26 September 2017

CaseChat Overview and Summary

This case involves a dispute between the Official Assignee and Gabrielle Mathiesen and Gordon McNab, the present trustees of the Sweet Pea Family Trust. The Official Assignee is seeking orders for the sale of a property held by the Trust and the distribution of funds held in escrow. The first respondents, Mathiesen and McNab, oppose the application. The primary legal issues were whether the Court had jurisdiction to order the sale of the Trust Property and whether such an order should be made. The Court found that it had jurisdiction under the Senior Courts Act 2006 and that an order for sale was appropriate given the Trust's level of indebtedness. The Court also found that the Official Assignee was subrogated to the equitable lien securing the former trustee's right to be indemnified from the Trust's assets. The Court granted the Official Assignee's application in part, directing the sale of the Trust Property and deferring consideration of the distribution of the proceeds of sale and the $20,000 held in escrow. The Court awarded costs to the Official Assignee on a category 2B basis, to be paid by Mathiesen and McNab.

Orders