Pearson v Official Assignee - [2022] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA511/2021
[2022] NZCA 158

BETWEEN	ANDREA REBECCA PEARSON Appellant
AND	THE OFFICIAL ASSIGNEE Respondent

Court:	Courtney and Dobson JJ
Counsel:	R Marsich for Appellant GAD Neil and S P Farnell for Respondent
Judgment: (On the papers)	4 May 2022 at 2.30 pm

JUDGMENT OF THE COURT

The application for strike out is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

The Official Assignee, who is the respondent in this appeal, has applied for it to be struck out under r 44A of the Court of Appeal (Civil) Rules 2005. The appeal has been brought by the appellant, Ms Pearson, from a decision of the High Court that confirmed the jurisdiction of the District Court to issue a warrant for the recovery of land in order to enforce a possession order,[1] in circumstances where the value of the land exceeds $500,000.[2] The strike out is sought on the basis that the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.[3]

The background

[1]Made by the District Court pursuant to s 152(2) of the Insolvency Act 2006.

[2]Official Assignee v Pearson [2021] NZHC 1892 [High Court judgment].

[3]Court of Appeal (Civil) Rules 2005, r 44A(1)(c).

Ms Pearson was adjudicated bankrupt in November 2016. She owned a residential property in Auckland that vested in the Official Assignee (the Assignee). The Assignee gave notice to Ms Pearson in March 2018 to vacate the property, but she refused to comply then and has consistently maintained her refusal since that time.
The Assignee obtained an order from the District Court under s 152(2) of the Insolvency Act 2006 granting the Assignee possession of the property.[4] An agreement was then reached that the Assignee would defer enforcing the District Court order, in reliance on an undertaking from Ms Pearson that she would deliver up vacant possession of the property by 4 September 2019. The undertaking completed by Ms Pearson on 30 May 2019 included the following:
… if I fail to deliver up vacant possession of the Property in accordance with my undertaking at 1 above, I will not bring any proceeding, application, complaint or take any step or initiate any other process for the purpose of (or that may have the effect of) delaying, hindering or abrogating the right of the Official Assignee to possession of the Property pursuant to the possession order of the District Court …
[4]Official Assignee v Pearson [2018] NZDC 23932 [District Court judgment].
In breach of the agreement, Ms Pearson continued in residence at the property after the deadline of 4 September 2019. The Assignee therefore applied to the District Court for a warrant to enforce recovery of the land. At the hearing of that application on 15 October 2020, the question arose as to whether the District Court had jurisdiction to grant an application for a warrant when the value of the land exceeded $500,000. Judge Sinclair…

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 Pearson v Official Assignee

Details

AGLC: Pearson v Official Assignee [2022] NZCA 158
Case: [2022] NZCA 158
Decision Date: 4 May 2022 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to determine whether an appeal brought by Ms. Pearson against a decision of the High Court should be struck out. The appeal related to the jurisdiction of the District Court to issue a warrant for the recovery of land in order to enforce a possession order. The Official Assignee, who is the respondent, applied for the appeal to be struck out under rule 44A of the Court of Appeal (Civil) Rules 2005, on the basis that the appeal was frivolous, vexatious, or otherwise an abuse of the process of the Court.

The central issue before the Court was whether the appeal was an abuse of process, given that Ms. Pearson had made an undertaking not to bring any proceedings, applications, complaints, or take any step or initiate any other process for the purpose of delaying, hindering, or abrogating the right of the Official Assignee to possession of the property. The Assignee argued that the commencement of the appeal was in breach of Ms. Pearson's undertaking and that her conduct deprived her of the right to pursue the appeal.

The Court of Appeal held that the commencement of the appeal was clearly in breach of Ms. Pearson’s undertaking and constituted an abuse of process. The Court found that there was no credible basis for the arguments that the High Court had wrongly confirmed the District Court’s jurisdiction, and that the appeal was without merit. The appeal was therefore struck out, and there was no issue as to costs.

In summary, the Court of Appeal of New Zealand dismissed the appeal brought by Ms. Pearson against the decision of the High Court, and held that the appeal was an abuse of process, given that it was in breach of an undertaking made by Ms. Pearson not to bring any proceedings to delay the Official Assignee’s right to possession of the property. The Court found that there was no credible basis for the arguments that the High Court had wrongly confirmed the District Court’s jurisdiction, and that the appeal was without merit. The appeal was therefore struck out, and there was no issue as to costs.

Orders