Official Assignee v Wenzel HC Auckland CIV 2005-404-6852

[2008] NZHC 2407

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-6852

UNDER  of the Insolvency Act 1967

IN THE MATTER OF     Shane Wenzel (a Bankrupt) BETWEEN  OFFICIAL ASSIGNEE

Applicant

ANDSHANE WENZEL Respondent

Hearing:         1 July 2008

Appearances: N H Malarao & K Wakelin  for Applicant

Shane Wenzel in person

Judgment:      10 July 2008 at 3 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 10 July 2008 at 3 pm pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:        Meredith Connell, PO Box 2213, Auckland

OFFICIAL ASSIGNEE V SHANE WENZEL HC AK CIV 2005-404-6852  10 July 2008

[1]      Shane Wenzel was adjudicated bankrupt on 21 November 2001. Because the official assignee objected to his discharge, which pursuant to s 107(1) Insolvency Act 1967 would have occurred on 21 November 2004 being three years from the date of adjudication, an examination of Mr Wenzel was required in terms of s 109(1) Insolvency Act 1967. That examination occurred on the 26 March 2008.

[2]      Mr  Wenzel  sought  a  discharge  from  bankruptcy.  Pursuant  to  s  110

Insolvency Act, the court may at any examination grant an immediate order of discharge or grant an order of discharge subject to the conditions more particularly set forth in that section.

[3]     In the decision of this court delivered on 15 April 2008 following the examination, the proceedings were adjourned for two months. The adjournment was to enable Mr Wenzel to supply the following information to the official assignee: -

a)        information as to the cause of his bankruptcy;

b)        details of his conduct in financial matters prior to bankruptcy; and

c)        full particulars of his current financial position including details of any assets he has accumulated, his income, and expenditure.

[4]      In the judgment delivered at that time, I indicated that Mr Wenzel should discuss  with  the  official  assignee  any proposal  as  to  payment  of  some  amount towards the debts proved in his bankruptcy.

[5]      At the conclusion of the judgment I also indicated to Mr Wenzel that the way in which he co-operates with the official  assignee and  supplies  the information relating to his financial affairs and causes of bankruptcy would be a significant factor to be taken into account in  determining  whether  he should  be  discharged  from bankruptcy.

[6]      The report prepared by the official assignee for the hearing on 1 July 2008 establishes that there has been no co-operation at all by Mr Wenzel. In particular, Mr Wenzel has not supplied full particulars of his financial position including details of his income and expenditure.

[7]      In his affidavit affirmed on 30 June 2008 Mr Wenzel does supply information as  to  the  cause  of  his  bankrutpcy  and  conduct  of  financial  matters  prior  to bankruptcy.

[8]      He refuses to supply any information relating to his current financial position relying upon the Credit Contracts and Consumer Finance Act 2003, Imperial Laws Application Act 1988, Magna Carta 1297 Imperial Law, Arbitration Act 1996, Te Whakaputanga (Declaration of Independence) O Ngä Rangatiratanga O Nu tirani (New Zealand) 1835 and Tiriti O Waitangi (The Treaty of Waitangi) 1840 as an un- extinguished Aboriginal Title Holder. He claims that by reason of those enactments and constituted documents he is not required to supply the information.

[9]      Since the hearing before me on 26 March 2008, Mr Wenzel’s appeal from his conviction in the Manukau District Court for offences under the Insolvency Act was heard on 1 May 2008. That appeal was dismissed.

[10]     Pursuant to s 60 Insolvency Act 1967, Mr Wenzel has certain duties which include “to the utmost of his power, aid in the realisation of his property and the distribution of the proceeds amongst his creditors”. He is  also  required  by that section from time to time to give a complete and accurate list of his property and of his creditors and debtors and “such other information as to his  property as  the Official Assignee requires”.

[11]     For reasons which I have already given in my decision of 15 April 2008, Mr Wenzel is not excused from complying with his obligations under the Insolvency Act 1967 by the Magna Carta 1297 Imperial Law, Te Whakaputanga (Declaration of Independence) O Ngä Rangatiratanga O Nu tirani (New Zealand) 1835, and Tiriti O Waitangi (The Treaty of Waitangi) 1840.

[12]     Pursuant to the decision of Richardson J in ASB Bank v Hogg [1993] 3 NZLR

156 at p 157-158, included in the matters the court must take into account when considering whether to discharge the bankrupt from bankruptcy are the manner in which the bankrupt has performed the duties imposed on him under the act and his conduct both before and after bankruptcy.

[13]     I take into account the fact that Mr Wenzel has been bankrupt for over seven years. I accept that in most cases it is not in the public interest for the bankruptcy to endure indefinitely. However, the purpose of the bankruptcy is to restrict the bankrupt’s ability to be involved in commercial enterprises and to give some protection to members of the public who deal with the bankrupt by requiring in certain circumstances the bankrupt to disclose the fact that he is bankrupt, thus warning those in the public who deal with him that the bankrupt has no assets. When obtaining credit from any person for over $1000,or the bankrupt must prove that before obtaining such credit he informed the person giving the credit that he was an undischarged bankrupt (see s 128(1)(g)(i) Sections 433, 434 Insolvency Act 2006).

[14]     In the unusual circumstances of this case, I am satisfied that it is in the interests of the public for Mr Wenzel’s bankruptcy to continue indefinitely. Not only has he refused to comply with his obligations under the Insolvency Act 1967 but he has also been actively involved in coaching a number of people on financial matters and has been involved in a number of companies which have become insolvent. The fact of his bankruptcy may be some protection to those members of the public who are considering obtaining financial advice from Mr Wenzel.

[15]     I am therefore satisfied that Mr Wenzel’s application to be discharged from bankruptcy must be dismissed.

[16]     Pursuant to s110(1)(d) when refusing an order of discharge the court may specify the earliest date on which the bankrupt may apply again to the court for an order of discharge. I observe that in Re Knight v Independent New Auckland Ltd HC AK B1256-IMOO 9 November 2007 Doogue AJ when refusing to discharge a bankrupt made an order that the bankrupt was not to bring another application for discharge for twelve months. In that case there was evidence from the bankrupt that

he had addressed a long standing drug problem which was claimed to underlay his offending and to be a cause of his bankruptcy.

[17]     In the present case, there is no evidence from Mr Wenzel that he is prepared to act in a commercially responsible manner. Indeed because of his view of the legitimacy of New Zealand’s parliament, he does not consider himself to be bound by the laws enacted by the Parliament. Consequently, until such time as he can demonstrate an intention to act in a commercially responsible manner and comply with his obligations under the Insolvency Act, it is in the public interest for him to remain  subject  to  the  restrictions  of  his  bankruptcy.  In  those  circumstances,  I conclude the request by the official assignee that no application by Mr Wenzel for discharge from bankruptcy should be brought for two years is entirely reasonable.

[18]     There will therefore be the following orders:

a)        The application by Mr Wenzel to be discharged from bankruptcy is dismissed.

b)Pursuant to s 110(1)(d) Mr Wenzel is not to bring another application for discharge for two years from the date of delivery of this judgment.

Associate Judge Robinson