Parker (Bankrupt) v Official Assignee - [2015] NZHC 2871

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-949 [2015] NZHC 2871

BETWEEN
PHILIP CHRISTOPHER PARKER

(BANKRUPT) Applicant

AND

OFFICIAL ASSIGNEE IN BANKRUPTCY of the property of PHILIP CHRISTOPHER PARKER Respondent

Hearing: 28 July 2015 and 2 September 2015

Appearances:

Mr Parker applicant in person
Ms K Morrison and Ms Meade for the Official Assignee

Judgment:

26 November 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
26.11.15 at 4.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

PARKER (BANKRUPT) v OFFICIAL ASSIGNEE [2015] NZHC 2871 [26 November 2015]

Background

[1] The background to the making of the present application is as follows.

a) Philip Christopher Parker was adjudicated bankrupt on his own petition on 18 February 2011. Mr Parker’s statement of affairs was received by the Official Assignee (“the Assignee”) on 18 February
2011, and his three year term of bankruptcy therefore began on that date.1 Mr Parker was eligible for an automatic discharge from bankruptcy on 18 February 2014. However on 10 February 2014 the Assignee objected to Mr Parker’s automatic discharge and Mr Parker therefore remains undischarged from bankruptcy.

b)On 7 May 2015, Mr Parker served on the Assignee an application for discharge from bankruptcy dated 5 May 2015. The Assignee issued a summons to Mr Parker to attend a public examination dated 22 May
2015. The public examination took place on 28 July 2015 part heard, and then again on 2 September 2015.

c) The Assignee filed a report dated 21 July 2015 (“Report”) in advance of the public examination, reporting on:2

i) The bankrupt’s affairs;

ii) The causes of the bankruptcy;

iii) The bankrupt’s performance of his or her duties under the

Insolvency Act 2006 (“Act”);

iv) The manner in which the bankrupt has obeyed orders of the

Court;

v) The bankrupt’s conduct before and after adjudication; and

1 Insolvency Act 2006, s 290 [Bundle of authorities (BOA), Tab 1].
2 Insolvency Act 2006, s 296 [BOA, Tab 1].

vi)Other matters relevant in assisting the Court in making a decision as to the bankrupt’s discharge.

First ground for opposing discharge – pre-adjudication conduct

Introduction

[2] The Assignee essentially takes the position that the objectives of the bankruptcy regime will not be met in this case if Mr Parker is discharged from bankruptcy.

[3] It is said that the objectives which will not be met in this case are, first of all, that completion of administration of Mr Parker’s estate will not be assisted if Mr Parker is able to leave the country and not be available to provide information to, and answer the enquiries of, the Assignee. If he is discharged from bankruptcy he will be free to leave the country.

[4] Further, a primary objective of the bankruptcy legislation as applied to this case is to ensure accountability on the part of the bankrupt. The Assignee takes the position that this element of the objectives of bankruptcy will not…

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.

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Details

Case: [2015] NZHC 2871
Decision Date: 26 November 2015

CaseChat Overview and Summary

The case of Parker (Bankrupt) v Official Assignee [2015] NZHC 2871 involved a dispute over the discharge of the bankrupt, Philip Christopher Parker. The Official Assignee opposed the discharge, arguing that it was not in the public interest for Mr Parker to be discharged from bankruptcy. The High Court of New Zealand, Auckland Registry, heard the case over two days in July and September 2015. The Official Assignee relied on pre-adjudication and post-adjudication conduct of Mr Parker, which they argued showed a lack of accountability, transparency, and commercial morality. The court agreed that Mr Parker's involvement in the Ukrainian Project, where he solicited funds for a farming venture in Ukraine, was particularly concerning. The court also found that Mr Parker's post-adjudication conduct, including non-disclosure of information and misrepresentation, was unsatisfactory. The court decided that the continuation of Mr Parker's bankruptcy was in the public interest, and therefore, his discharge should be deferred until 18 February 2017. The court also ordered the parties to submit their views on costs within 15 working days from the date of the judgment.

Orders