Official Trustee in Bankruptcy v Smith

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1228 [2014] NZHC 1305

UNDER

the Insolvency (Cross-border) Act 2006 and the High Court Rules

IN THE MATTER OF

an application pursuant to sch 1, Chapter III, art 15 of the Act, and rr 24.26, 24.57 and 18.7 of the Rules

BETWEEN

THE OFFICIAL TRUSTEE IN BANKRUPTCY

Applicant

AND

DAVID JOHN SMITH
of Bunbury, Western Australia, bankrupt
Respondent

Hearing:	On the papers
Appearances:	Phillip Cornegé for Applicant
Judgment:	11 June 2014

JUDGMENT OF ASSOCIATE JUDGE BELL

This judgment was delivered by me on   11 June 2014 at 11:00am

pursuant to Rule 11.5 of the High Court Rules.

...................................

Registrar/Deputy Registrar

Solicitors:

Nielsen Law (David Nielsen), Hamilton, for Applicant

Counsel:

Phillip Cornegé, Barrister, Hamilton, for Applicant

THE OFFICIAL TRUSTEE IN BANKRUPTCY v SMITH [2014] NZHC 1305 [11 June 2014]

[1] This is an originating application for recognition of a foreign main proceeding under the Insolvency (Cross-border) Act 2006, sch 1, Chapter III, art 15. The Official Trustee applies for these orders:

(a)       dispensing with service on the respondent;

(b)for recognition under Chapter III of the Model Law on Cross-Border Insolvency of the Australian bankruptcy of David John Smith, arising out of a sequestration order made in the Federal Magistrates’ Court of Australia at Sydney on 19 September 2012; and

(c)       entrusting  the  administration  or  realisation  of  the  debtor’s  New

Zealand assets to the Official Assignee at Hamilton.

Facts

[2]      David  Smith,  the  respondent,  was  born  in  New  Zealand,  but  lives  in Australia, has an Australian domicile and is an Australian citizen.  In recent years he has lived in Western Australia. He presently lives in South Bunbury.

[3] On 19 September 2012, on the petition of Medfin Australia Pty Ltd a sequestration order was made under the Bankruptcy Act 1966 (Cth) against Mr Smith in the Federal Magistrates’ Court of Australia at Sydney. The Official Trustee in Bankruptcy was appointed trustee of Mr Smith’s estate. Mr Smith has provided the Insolvency and Trustee Service Australia (was known as ITSA, now known as Australia Financial Security Authority) with a statement of affairs which discloses two New Zealand assets – an interest in the estate of his late father (the Public Trust in Nelson is administering the estate) and an account with the ANZ Bank in Nelson. The case manager in Australia asked Mr Smith to transfer the funds in the bank account to the Official Trustee, but Mr Smith refused to do so. Following contact by the case officer, the ANZ Bank has placed a block on the account pending this application. The ultimate purpose of this application is to have the funds in that bank account, which vested in the Official Trustee on Mr Smith’s adjudication in bankruptcy, transferred to the Official Trustee.

(a)       a certified copy of the sequestration order of 19 September 2012;1

(b)      a certificate of appointment of the Official Trustee;2

(c)      information identifying all foreign proceedings in respect of Mr Smith known to the Official Trustee(?);3 and

(d)that…