Official Assignee v Pearson

[2021] NZHC 1892

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2384

[2021] NZHC 1892

UNDER

Part 21 of the High Court Rules 2016

IN THE MATTER

of a case stated from the District Court at Auckland

BETWEEN

OFFICIAL ASSIGNEE

Applicant

AND

ANDREA REBECCA PEARSON

Respondent

Hearing:

27 April 2021

Appearances:

G Neil and S Farnell for the Applicant

F Pilditch QC as counsel assisting the Respondent

Judgment:

26 July 2021

JUDGMENT OF HARLAND J

This judgment was delivered by me on 26 July 2021 at 3:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar  Date:………………….

Counsel/Solicitors:

G Neil, Meredith Connell, Auckland

S Farnell, Meredith Connell, Auckland F Pilditch QC, Barrister, Auckland

Copy to the Respondent

Introduction

[1]                 This judgment determines a case stated brought pursuant to s 93 of the District Court Act 2016 (the DC Act) and rr 21.4 and 21.9 of the High Court Rules 2016. It concerns the jurisdiction of the District Court to issue a warrant for the recovery of land to enforce a possession order validly granted by it under s 152 of the Insolvency Act 2006 (the Insolvency Act), in circumstances where the value of the land exceeds the District Court limit of $500,000 provided for under s 79(1) of the DC Act.

[2]The specific questions of law I am asked to resolve are:

(a)Is an order granted under s 152 of the Insolvency Act a judgment or an order for the recovery of land that may be enforced by the issuance of a warrant for the recovery of land pursuant to r 19.65 of the District Court Rules 2014 (the DC Rules)? (Question One)

(b)If not, may the Court enforce an order under s 152 as if it were a judgment or order for recovery of land by issuance of a warrant for the recovery of land pursuant to r 19.65 of the DC Rules, in accordance with the jurisdiction conferred on the District Court by r 1.11 of the DC Rules? (Question Two)

(c)If not, does the District Court have an implied statutory jurisdiction to enforce an order made under s 152 of the Insolvency Act, and pursuant to that implied statutory jurisdiction, [to] enforce the order by issuance of a warrant for the recovery of land in Form 64 of Schedule 2 of the DC Rules? (Question Three)

(d)If none of the above questions are answered in the affirmative, what enforcement remedy (if any) is available to the District Court to enforce an order made under s 152 of the Insolvency Act? (Question Four)

[3]                 I have decided that a warrant for the recovery of land may be issued in the District Court pursuant to r 19.65 of the DC Rules, therefore I am not required to answer the remaining questions posed in the case stated.

[4]This judgment sets out my reasons for reaching that decision.

Background

[5]                 On 10 November 2016, Andrea Pearson was adjudicated bankrupt on the application of…