IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2013-485-450 [2014] NZHC 345
UNDER the Declaratory Judgments Act 1908, the
Insolvency Act 2006 and KiwiSaver
Act 2006
IN THE MATTER OF a proposed exercise of power under
Rule 10 of Schedule 1 of the KiwiSaver
Act 2006
BETWEEN THE OFFICIAL ASSIGNEE Plaintiff
ANDTRUSTEES EXECUTORS LIMITED Defendant
Hearing: 24-25 February 2014
Counsel: M Andrews, R D Garden and G E Slevin for Plaintiff
C M Stevens and N D Chapman for Defendant
J L Marshall QC as Amicus Curiae
Judgment: 21 March 2014
JUDGMENT OF RONALD YOUNG J
(Re-released pursuant to r 11.10 High Court Rules)
Introduction
[1] These proceedings raise the following question: can the Official Assignee (“Assignee”) use a bankrupt’s KiwiSaver account to help pay the bankrupt’s creditors?
[2] The Assignee seeks 11 declarations to authorise the use of a bankrupt’s KiwiSaver account to help pay the bankrupt’s creditors. The Assignee submits that the declarations would reflect a proper analysis of the Insolvency Act 2006 and the
KiwiSaver Act 2006.
OFFICIAL ASSIGNEE v TRUSTEES EXECUTORS [2014] NZHC 345 [21 March 2014]
[3] Trustees Executors Limited, the trustees for the KiwiSaver accounts of the two bankrupts immediately affected by these proceedings, and the amicus on behalf of the two bankrupts, all submit that none of the declarations should be made. They submit that a proper reconciliation of the KiwiSaver Act 2006 and the Insolvency Act 2006 means the Assignee cannot access a bankrupt’s KiwiSaver account for any purpose.
[4] All parties agree, however, that the answer to the question I have posed raises three questions. The answer to these questions, they say, will in turn enable me to decide which, if any, of the 11 declarations sought by the Assignee should be made.
The issues for determination
[5] The three questions (as framed by the Assignee) are:
(a) are the bankrupts’ KiwiSaver interests “property” for the purpose of the Insolvency Act 2006? If yes;
(b) on insolvency, do the KiwiSaver interests of a bankrupt vest in the
Assignee? If yes;
(c) can the Assignee access the bankrupts’ KiwiSaver interests under the early withdrawal provisions of the KiwiSaver Act 2006, in particular the “significant financial hardship” provision?
Background facts
[6] These issues arose when the Assignee requested Trustees Executors Superannuation Limited (the defendant’s predecessor) to release the funds in the KiwiSaver accounts of two bankrupts (Mr T and Mr H) to the Assignee pursuant to
the hardship provisions of the KiwiSaver Act 2006.1
1 KiwiSaver Act 2006, sch 1, r 10.
[7] Trustees Executors refused to release the funds; they said that the bankrupts’ KiwiSaver interests were not property. The KiwiSaver interests of a bankrupt therefore did not vest in the Assignee on bankruptcy and, in any event, the significant financial hardship provision in the KiwiSaver Rules would not permit early release of the funds.
[8] Mr T has been a member of a KiwiSaver scheme since 2007. He was adjudicated bankrupt in June 2010. His proofs of debt were…
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