Official Assignee v Scott - [2013] NZHC 2904

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-815

CIV-2012-470-816 [2013] NZHC 2904

BETWEEN THE OFFICIAL ASSIGNEE AT HAMILTON
Applicant

ANDLEWTYN MICHAEL SCOTT First Respondent

WOOD WALTON TRUSTEES (2010) LIMITED
Second Respondent
ALH TRUSTEE CO LIMITED Third Respondent
WOOD WALTON TRUSTEES (2011) LIMITED
Fourth Respondent
ASB BANK LIMITED Fifth Respondent

Hearing: 29 October and 4 November 2013

Appearances: S N Cameron for Applicant
Mr Scott in person
No appearance for second, third, fourth and fifth respondents

Judgment: 5 November 2013

JUDGMENT OF LANG J

[on originating applications for orders under
ss 206 and 207 of the Insolvency Act 2007]

This judgment was delivered by me on 5 November 2013 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

THE OFFICIAL ASSIGNEE AT HAMILTON v LEWTYN MICHAEL SCOTT [2013] NZHC 2904 [5
November 2013]

[1] Mr Lewtyn Scott was adjudicated bankrupt on 22 July 2011.1 In these proceedings the Official Assignee seeks orders under ss 206 and 207 of the Insolvency Act 2006 (“the Insolvency Act”) cancelling several transactions that he alleges prejudiced Mr Scott’s creditors. The Official Assignee seeks ancillary orders retransferring the property that is the subject of those transactions into his name.

[2] The property in question is as follows:2

(i) A residential property situated at 5A Pillans Road, Tauranga (“the

Pillans road property”);

(ii) An undivided one-eighth share in a section of bare land situated on

Ohakana Island (“the Ohakana property”);

(iii) A boat and trailer, the trailer having a registration number 47LCK; (iv) A Massey Ferguson tractor 174-4;
(v) A gift in the sum of $27,000 made by Mr Scott to the Scott Family

Trust on 27 July 2010.

[3] The Official Assignee contends that the transactions described in [2](i) to (iv)

are dispositions of property to which Subpart 6 of Part 6 of the Property Law Act

2007 (“the Property Law Act”) applies. That subpart permits the Court to set aside a disposition of property made by a person who is insolvent in circumstances where that person intends the disposition to prejudice his or her creditors.

[4] The Official Assignee contends that the gift described in [2](v) was an insolvent gift in terms of s 204 of the Insolvency Act.

1 Simpson v Scott HC Tauranga CIV-2010-470-0690, 22 July 2013.
2 The Official Assignee originally also sought orders in respect of a Nissan Navara motor vehicle that Mr Scott had in his possession at the time of his adjudication. The Official Assignee abandoned this aspect of his applications during the hearing because he accepted that Mr Scott sold this vehicle to a third party in September 2012.

The hearing

[5] The hearing of the substantive applications was originally scheduled to take place on 29 October 2013. On that date, however, Mr Scott raised several preliminary issues. I determined these issues in a written ruling that I delivered on
30 October 2013.3 I then adjourned the hearing of the substantive applications until

4 November 2013.

[6] When the hearing…

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 Scott

Details

AGLC: Official Assignee v Scott [2013] NZHC 2904
Case: [2013] NZHC 2904
Decision Date: 5 November 2013

CaseChat Overview and Summary

The Official Assignee sought to cancel several transactions that allegedly prejudiced Mr Scott's creditors, and to retransfer the property that was the subject of those transactions into his name. The Official Assignee contended that the transactions in question were dispositions of property that could be set aside because they were made by a person who was insolvent at the time and intended to prejudice his creditors. The Official Assignee also contended that a gift made by Mr Scott to the Scott Family Trust was an insolvent gift. The Official Assignee sought ancillary orders for the retransfer of the property to the Official Assignee. Mr Scott was unrepresented when the hearing commenced. He withdrew from the proceedings, which therefore proceeded on a formal proof basis. The Official Assignee was entitled to an order cancelling the transfers of all of the assets to the Scott Family Trust, and the gift of $27,000. The Official Assignee was also entitled to an order that the transaction in which Mr Scott resettled assets on the Ohakana Trust be cancelled, and the assets retransferred to the Official Assignee. All of the transactions were cancelled, and the Official Assignee was granted orders that the assets be retransferred to him.

Orders