Official Assignee v McCreath

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-106

[2020] NZHC 343

IN THE MATTER OF

the Insolvency Act 2006

AND

IN THE MATTER OF

the Bankruptcy of Mark Anthony McCreath

BETWEEN

THE OFFICIAL ASSIGNEE

Applicant

AND

MARK ANTHONY McCREATH

Respondent

Hearing:

20 February 2020

Appearances:

Mr D Dingwall for the Applicant

M A McCreath in person Respondent

Judgment:

2 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 2 March 2020 at 12.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 2 March 2020

THE OFFICIAL ASSIGNEE v McCREATH [2020] NZHC 343 [2 March 2020]

[1]                 Mr McCreath was bankrupted for the fourth time on 21 March 2016. That bankruptcy along with his prior bankruptcies was initiated by him.

[2]                 Pursuant to s 290 of the Insolvency Act 2006 (“the Act”), the bankrupt was due for automatic discharge on 21 March 2019. That was overtaken by an objection by the Official Assignee under s 292 of the Act.

[3]                 Mr McCreath’s examination took place on 20 February 2020 having been previously adjourned at Mr McCreath’s  request.  The Official Assignee  completed a report for the examination which Mr McCreath had reviewed prior to the examination. Mr McCreath did not file any papers for the examination.

The Official Assignee’s report

[4]The following timeline arises from the report.

21 March 2016:	Bankruptcy.
7 September 2016:	Date of offence of accessing computer system for     dishonest     purpose     –     convicted 14 February 2018.
December 2016:	Tip to the Official Assignee that bankrupt had established business.
17 March 2017:	Date of offence  for  burglary  –  convicted  14 February 2018.
November 2017:	Investigation into bankrupt’s alleged trading completed and prosecution commenced.
27 April 2018:	Mr McCreath pleads guilty to the following:

(1)Failing without reasonable excuse to notify the Official Assignee of a change of address and income;

(2)Entering and carrying on, taking part and management and control of a business while an undischarged bankrupt;

(3)One charge  of  making  a  false  entry  in a document as a representative charge under the Act and the Companies Act 1993;

(4)Being a party to carrying on a business with intent to defraud creditors;

(5)Representative charges of obtaining by deception;

25 July 2018:

Insolvency defences in relation to credit. Sentenced two years, prohibition and prohibited from being a director (which I will return to later).

October 2018 to

January 2019:

Official Assignee alleges that the bankrupt was undertaking a new business using an alias– denied by the bankrupt.

[5]                 Mr McCreath did not take issue with any of the above, save as indicated. That was not surprising given his guilty pleas to the charges listed above and to the history of convictions produced to the Court.

Legal principles

[6]                 Mr Dingwall for the Official Assignee accepted the onus was on the Official Assignee to satisfy the Court that it was in the public interest that the bankruptcy, which would otherwise be automatically discharged after three…