Official Assignee v The the King - [2022] NZHC 3446

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1654

[2022] NZHC 3446

UNDER Section 339 of the Property Law Act 2007

IN THE MATER

of the bankrupt estate of Vinay Vasantrao Rajput

BETWEEN

OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF VINAY VASANTRAO RAJPUT

Plaintiff

AND

HARSHA VINAY RAJPUT

Defendant

Hearing: On the papers

Counsel:

R Hindriksen for the Plaintiff

Judgment:

15 December 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 15 December 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr N Gareth and Mr R Hindriksen, Meredith Connell, Office of the Crown Solicitor, Auckland

OFFICIAL ASSIGNEE v RAJPUT [2022] NZHC 3446 [15 December 2022]

[1] This application for summary judgment by the Official Assignee (Assignee) was listed for first call on 8 November 2022. The Assignee seeks orders under s 339 of the Property Law Act 2007 (PLA) that the property situated at 179 Taylor Street, Blockhouse Bay, Auckland (property)1 be sold and the proceeds be divided between Ms Rajput and the Assignee.

[2] These proceedings were filed on 9 September 2022 and served on Ms Rajput on 12 September 2022. Ms Rajput did not file any opposition and there was no appearance by or for her at the first call. Other interested parties have also been served as required2 and have taken no steps in the proceeding.

[3] Mr Hindriksen, for the Assignee, sought summary judgment at the first call. He filed a helpful memorandum in support. As he submitted, there is no doubt that applications for sale orders under s 339 of the PLA are amenable to the summary judgment procedure and summary judgment has been granted in many cases.

[4] However, even where the application is undefended, applications for such sale orders ordinarily proceed by way of a formal proof hearing. That is because s 339 involves the exercise of a judicial discretion or evaluation having regard to prescribed statutory factors, requiring a judgment with reasons. Such applications are generally not suited to orders in a busy list court. As Mr Hindriksen was aware, the Court is sometimes able to make an exception and deal with the matter without requiring a formal proof hearing.3

[5] In this case, I was not able to deal with the matter in the list but I did not consider that a formal proof hearing was required and offered to deal with the application on the papers. I have now had an opportunity to review the documents more fully. A formal proof hearing is not required and would add further cost which, if the orders sought are made, would ultimately reduce Ms Rajput’s share of the sale proceeds.

1      Identifier NA107D/469, Legal Description Lot 2 Deposited Plan 32739.
2      Property Law Act 2007, s 341(2).
3      See for example Bank of New Zealand v Padamati [2021] NZHC 45; and Official Assignee v Harding [2022] NZHC…

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 The the King

Details

AGLC: Official Assignee v The the King [2022] NZHC 3446
Case: [2022] NZHC 3446
Decision Date: 15 December 2022

CaseChat Overview and Summary

The Official Assignee, acting on behalf of the bankrupt estate of Vinay Vasantrao Rajput, sought summary judgment to sell the property located at 179 Taylor Street, Blockhouse Bay, Auckland, and divide the proceeds between the Official Assignee and Harsha Vinay Rajput, the surviving joint tenant. The Official Assignee sought this under Section 339 of the Property Law Act 2007. Harsha did not oppose the application, and no other interested parties have taken any steps in the proceedings. The Official Assignee argued that the property was the only realisable asset of material value in the bankrupt estate and that a sale was necessary to realise the Assignee’s half interest for the benefit of creditors.

The court examined the statutory factors under Section 342 of the Property Law Act 2007. The court noted that Harsha had a half share in the property, which was a residential property in suburban Auckland. The court also noted that the Official Assignee had attempted to negotiate with Harsha and secure a sale at a reasonable price and offered her the opportunity to purchase the Official Assignee’s half share. However, Harsha was unwilling to accept what the Official Assignee considered were reasonable offers at market value, and she failed to progress an alternative purchase of the Official Assignee’s half share. The court was satisfied that the statutory factors weighed in favour of the orders sought. The court noted that the property was the only realisable asset of material value in the bankrupt estate, and without a sale, there would be no recoveries to pay creditor claims and bankruptcy administration costs. The hardship that would be caused to the Official Assignee and creditors by refusing the order outweighed the hardship caused to Harsha by ordering the sale. The court also noted that Harsha would receive her half share of the net proceeds after costs.

The court made orders in the terms sought by the Official Assignee, with a longer stay of 28 days to provide Harsha with a final opportunity to purchase (or arrange for the purchase of) the Official Assignee’s half interest in the property. The court also reserved the Official Assignee’s leave to urgently return to the Court for further directions or orders of the Court if the occupiers of the property do not comply with the above orders or act in a way that impedes the sale process. The court awarded costs to the Official Assignee on a 2B basis, together with disbursements as fixed by the Registrar.

Orders