Panther v Panther - [2016] NZHC 809

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2016-470-54 [2016] NZHC 809

BETWEEN
DAVID MICHAEL ROSS PANTHER

Applicant

AND

JUDY-ANNE GLORY PANTHER Respondent

Hearing: 27 April 2016

Counsel:

C Murphy for Applicant
No appearance by, or on behalf of Respondent

Judgment:

27 April 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:
MacKenzie Elvin, Tauranga

PANTHER v PANTHER [2016] NZHC 809 [27 April 2016]

The application

[1] Mr Panther applies under s 119(1)(b) of the Insolvency Act 2006 (the Act) for an order vesting a one half share in each of two properties in him. That share was previously held by his former wife, who has since been adjudged bankrupt. Her interest passed to the Official Assignee. Subsequently the Official Assignee disclaimed that proprietary interest as “onerous property”. That is the context in which the present application is brought.

Background

[2] Mr and Ms Panther were married on 10 August 1985. During their marriage they purchased, in September 2005 and June 2010 respectively, two properties in Tauranga. One is located in Brodie Place, Bethlehem, and the other in First Avenue, Tauranga.

[3] Mr and Ms Panther separated in about April 2012. While negotiations were underway in respect of relationship property, Ms Panther adjudged herself bankrupt. The bankruptcy commenced on 20 September 2013. She remains undischarged. I understand that no relationship property proceedings have yet been commenced.

[4] After the Official Assignee had given consideration to the issues, he decided to disclaim Mr Panther’s half share in each of the two properties. The ability for the Official Assignee to disclaim “onerous property” derives from s 117 of the Act. No issue arises as to the validity of the disclaimer.

Legal principles

[5] Sections 118 and 119 of the Act address the effect and consequences of a disclaimer:

118 Effect of disclaimer

A disclaimer by the Assignee—

(a) brings to an end, on and from the date of the disclaimer, the rights, interests, and liabilities of the Assignee and the bankrupt in relation to the property disclaimed:

(b) does not affect the rights, interests, or liabilities of any other person, except in so far as is necessary to release the Assignee or the bankrupt from a liability.

119 Position of person who suffers loss as result of disclaimer

(1) A person suffering loss or damage as a result of disclaimer by the
Assignee may—

(a) claim as a creditor in the bankruptcy for the amount of the loss or damage, taking account of the effect of an order made by the court under paragraph (b):

(b)apply to the court for an order that the disclaimed property be delivered to, or vested in, that person.

(2) The bankrupt may also apply for an order that the disclaimed property be delivered to, or vested in, the bankrupt.

(3) The court may make an order under subsection (1)(b) or (2) if it is satisfied that it is fair that the property should be delivered to, or vested in, the applicant.

[6] While s 118(a)…

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 Panther v Panther

Details

AGLC: Panther v Panther [2016] NZHC 809
Case: [2016] NZHC 809
Decision Date: 27 April 2016

CaseChat Overview and Summary

In the High Court of New Zealand, David Michael Ross Panther applied for an order vesting a one-half share in each of two properties in him. These shares were previously held by his former wife, Judy-Anne Glory Panther, who had been adjudged bankrupt. The Official Assignee had disclaimed her interest as "onerous property" under the Insolvency Act 2006. Mr. Panther applied under s 119(1)(b) of the Act for an order to vest the disclaimed shares in him, to regularise the title and enable sales to be made. The court was required to decide whether Mr. Panther had suffered "loss or damage" as a result of the disclaimer, and if so, whether it was fair to vest the disclaimed property in him.

The court found that Mr. Panther had indeed suffered loss or damage as a result of the disclaimer. He had been servicing the secured debt and faced weathertight problems with one of the properties, leading to negative equity. Additionally, he had been unable to complete a sale of one of the properties due to the current state of the title. The court concluded that it was fair to vest the disclaimed shares in Mr. Panther, as he had assumed all risk with respect to the properties since his former wife's bankruptcy.

The court made an order that the one-half interest currently registered in the name of Ms. Panther in each of the two properties, 10 First Avenue, Tauranga, and 31/19 Brodie Place, Bethlehem, be vested in David Michael Ross Panther. Leave was reserved to apply for further directions if any clarification was required by the District Land Registrar before the vesting order was registered. No order was made as to costs.

Orders