Pellett v New Zealand Insolvency and Trustee Service HC Auckland B 1757im99

[2001] NZHC 281

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY B 1757im99

IN THE MATTER of the Insolvency Act 1967
BETWEEN J M PELLETT
Applicant

AND NEW ZEALAND INSOLVENCY AND TRUSTEE SERVICE
Respondent

Hearing: 11 April 2001

Counsel: D Jackson for applicant
N Malarao for Official Assignee

Judgment: 11 April 2001

(ORAL) JUDGMENT OF MASTER FAIRE

[1] The bankrupt filed his debtor’s petition in this Court on 11 November 1999.

[2] He now applies for an order pursuant to s 108 of the Insolvency Act 1967 for early discharge from bankruptcy. The Official Assignee has filed a report. The report confirms that proofs of debt were lodged with the Official Assignee. It also confirms that the Official Assignee has received funds which have been used to settle all creditors who have made proofs to the extent of 100c in the $ plus interest together with the Official Assignee’s commission and disbursements. The Official Assignee does not oppose the application.

[3] The bankrupt has complied with the procedural requirements set out in the Insolvency Act 1967. The application has been advertised. Notice has been given to creditors. The Official Assignee has presented his report.

[4] The approach to applications for early discharge from bankruptcy has been commented upon by the Court of Appeal. In ASB Bank Limited v Hogg [1993] 3 NZLR 156, 157-158 the Court said:

“In providing for earlier discharge, s 108 recognises that continuing the bankruptcy to the end of the three years may not be in the public interest. Whether or not it is will be a matter for decision on the particular facts. In that regard, guidance is provided by s 109(2) which lists matters on which the assignee is to report to the High Court in such a case. The Court is to consider the assignee’s report as to the affairs of the bankrupt, the causes of the bankruptcy, the manner in which the bankrupt has performed the duties imposed on him or her under the Act and his or her conduct both before and after the bankruptcy, and also as to any other fact, matter or circumstance that would assist the Court in making its decision. Clearly the Court apprised of the matter will consider the legitimate interests of the bankrupt, the creditors and wider public concerns, but it is neither required nor entitled to impose threshold requirements in the exercise of the discretion so as to derogate from the breadth of the powers conferred under s 110. The applicant has the onus, in the sense of adducing evidence, to show good cause for ordering an early discharge, but his obligation goes no further than that.”

[5] When I consider the matters set out in s 109(2) of the Insolvency Act 1967 and have regard particularly to the fact that this debtor has paid all his creditors in full together with interest, it is clear to me that this is a case where the applicant has satisfied the onus that it is an appropriate case to grant an early discharge from bankruptcy.

[6] I am advised that the Official Assignee’s costs in relation to this hearin in the sum of $337.50 have been paid.

[7] The Official Assignee seeks an order in the event that an order of early discharge has been made that he advertise such order once only in the New Zealand Herald and The New Zealand Gazette. In my view, this an appropriate direction.

Conclusion

[8] I order:

[a] That John Malcolm Pellett be discharged from the order of adjudication as a bankrupt dated 11 November 1999;

[b] That the sum of $337.50 paid to the affidavits in opposition are the costs of the Official Assignee which are to be paid by the bankrupt in relation to this application;

[c] That the Official Assignee advertise the order of early discharge once only in the New Zealand Herald and the New Zealand Gazette when such order has been formally released by the Court.