Official Assignee v Nikora

[2017] NZHC 2907

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2614 [2017] NZHC 2907

BETWEEN

THE OFFICIAL ASSIGNEE

Applicant

AND

MICHAEL EDWARD NIKORA First Respondent

BIG CHILL DISTRIBUTION LIMITED Second Respondent

Hearing:	23 November 2017
Appearances:	Mr C T Jones for Applicant No appearance for Respondents
Judgment:	23 November 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

THE OFFICIAL ASSIGNEE v NIKORA [2017] NZHC 2907 [23 November 2017]

[1]      The  first  respondent  Mr  Nikora  was  adjudicated  bankrupt  on  his  own application on 13 September 2019.  It was his second bankruptcy.

[2]      He owed creditors approximately $50,000.  Mr Nikora is working as a truck driver employed by the second respondent earning a gross weekly income $1,295.80 which after tax becomes $971.46 net paid per week.   Mr Nikora is in fact paid fortnightly but that does not affect the accuracy of the figures that I have just set out.

[3]      The Official Assignee has carried out a calculation to establish what amount of uncommitted income Mr Nikora as a single person with no defendants should be able to contribute to the deficit in his bankrupt estate.  The figure arrived at showed that he ought to be able to pay $227.99 per week.   However following various discussions that took place between Mr Nikora and the applicant, the applicant would consider that a figure of $150/week or $300 per fortnight should be sufficient. The affidavit which has been filed in support of the application and which has not been the subject of opposing testimony by Mr Nikora makes a number of points. The  main  thrust  of  the  affidavit  is  that  various  claims  that  Mr  Nikora  made concerning what he regarded as essential items of expenditure per week were over- stated.  I have no reason to doubt the assessment of the applicant’s deponent in that regard.   The remarks that she makes on the various claimed items that should be included  as  part  of the  budgeted  expenses of  Mr Nikora per week  seem  to  be balanced and reasonable.  Further, it may be that the claimed items of expenditure which Mr Nikora has put forward are designed to mask payments which he makes from time to time at gambling venues.  Taking all matters into account I am satisfied that Mr Nikora has a surplus of income which ought to be used to make payments towards his creditors pursuant to ss 106 and 147 of the Insolvency Act 2006.

[4]      The Official Assignee is seeking, in addition to current and future payments, the recovery of accrued arrears of what the first respondent ought to have paid to date, a figure of $6,300.   I am satisfied that backdating the obligation to make contribution as suggested is not unreasonable given that he was bankrupted in September of 2016.   In other words there is a period for which he will not be required to make a contribution to his debts.  The way in which the draft order which

the applicant has filed is structured would require Mr Nikora to pay $150 per week /

$300 per fortnight until the end of his bankruptcy but also the payments would be required to continue until such time as the amount of arrears of $6,300 has been paid off.  I consider that those payments in totality are not unfair and would not prejudice Mr Nikora in the sense of not leaving him enough to live on.  The Official Assignee has submitted a draft order which I have dated 23 November 2017.  There will be orders in terms of the draft subject to the following amendments to sub-paragraph “e”.

(e)       The order is to continue in effect until such time as the bankrupt is discharged from bankruptcy and the arears of $6,300 and the costs of the  application  have  been  made  to  the  Official  Assignee  by continued payments of $300 per fortnight.

[5]      Costs  are ordered  on  a  2B basis  together disbursements  as  fixed  by the

Registrar.

J.P. Doogue

Associate Judge