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…
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- Case
- [2014] NZHC 1305
- Decision Date
CaseChat Overview and Summary
The court held that it was necessary to serve the respondent to ensure natural justice, despite the strong case for recognition and the respondent's Australian domicile and residence. The court found that the application did not fall under any of the exceptions allowing for service to be dispensed with. However, the court also found that it was possible to make the recognition order while allowing the respondent to apply to set it aside within 30 working days. This approach was deemed appropriate given the close relations between Australia and New Zealand, and the confidence both countries have in each other's legal systems. The court granted leave to serve the order outside New Zealand and extended the time for the respondent to apply to review the order to 30 working days after service.
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