Stables Family
[2016] NZHC 2519
•21 October 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2016-419-353 [2016] NZHC 2519
UNDER The Insolvency Act 2006 IN THE MATTER
of the bankruptcy of ERIN OWEN STABLES AND VICTORIA JILLIAN LAMBERT
AND
IN THE MATTER
of an application by OWEN JOSEPH STABLES AND LEONE HENRIETTA STABLES, AND JOHNATHAN HENRY STABLES, NICOLA STABLES AND JOANNE RACHEL MCLEAN AS TRUSTEES OF THE STABLES FAMILY TRUST, for a vesting order under section
119 of the Insolvency Act 2006
Hearing: On the papers Counsel:
P Cornegé for the applicants
Judgment:
21 October 2016
JUDGMENT OF MUIR J
This judgment was delivered by me on Friday 21 October 2016 at 3.00 pm
Pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………
Counsel/Solicitors:
P Cornegé, Barrister, Hamilton
P Ellice, Ellice Tanner Hart, Hamilton
Application by Stables Family for Vesting Order [2016] NZHC 2519 [21 October 2016]
[1] This is a without notice originating application for leave to commence proceedings by originating application and for orders vesting disclaimed property. It is said, inter alia, to be made in reliance on s 19.5 of the Insolvency Act 2006. There is no such section. I will consider the application under s 119(1) of the Act which is the relevant provision.
[2] The applicants are the trustees of the Stables Family Trust and Mr and Mrs Owen and Leonie Stables. The trustees of the Stables Trust are Ms Nicola Stables, her husband Jonathan, and an independent trustee Joanne McLean. Mr and Mrs Owen and Leonie Stables are the parents and parents-in-law respectively of Nicola and Jonathan.
[3] Each of the Stables Family Trust and Owen and Leonie Stables hold a one third share in a property at 38 Kowhai Drive, Te Kouma, Coromandel, described as Certificate of Title SA15C/1117, South Auckland Land Registry.
[4] The remaining one third share of the property was formerly held by Nicola’s
brother-in-law Erin Stables and his ex wife Victoria Lambert.
[5] The property is subject to a mortgage in favour of Bank of New Zealand under which $300,869.18 is currently owed.
[6] Erin and Victoria were adjudicated bankrupt on 6 December 2012. Consequently their one third share in the property vested in the Official Assignee.
[7] On 2 July 2013 the Official Assignee disclaimed her interest in the property under s 1117 of the Insolvency Act 2006.
[8] In the result, Erin and Victoria’s one third share in the property became bona vacantia and vested in the Crown.
[9] On or about 30 May 2016 the applicants entered into an agreement for sale and purchase of the property which is due to settle on 7 November 2016. It is for the sum of $435,000. They did not realise until recently that as a result of the Official Assignee’s disclaimer, their former partners one third share had vested in the Crown.
[10] The applicants seek orders that Erin and Victoria’s one third share vest equally in the remaining owners who have supported all outgoings in the property since Erin and Victoria were bankrupted and their interest disclaimed. I am satisfied that they are in that sense persons who have suffered loss or damage as a result of the disclaimer within the terms of s 119(1) of the Insolvency Act 2006. The result would be that each of the Stables Family Trust and Owen and Leone would hold an undivided one half share in the property.
[11] Annexed to Nicola’s affidavit in support of the application is correspondence from each of the Treasury, Official Assignee, Bank of New Zealand and Erin and Victoria either consenting to or not opposing the orders sought. The correspondence from the Treasury specifically identifies that it does not wish to be either served or otherwise involved in the application. The correspondence from the Official Assignee records that its non-opposition is based on the agreement of Erin and Victoria which is recorded respectively in correspondence from Victoria’s solicitor and in an email from Erin.
[12] In a recent and similar case in relation to an application by Andrew Robert Beaton1 Whata J noted that since all parties affected by the application either consented or did not oppose the vesting it was appropriate in the interests of justice that orders be made. In that case orders as to service had been made on the relevant parties who then responded, indicating their positions. That outcome has been predicated in this case by the various correspondences which I have referred to. I am satisfied in that context that service may be dispensed with and substantive orders made.
[13] Accordingly, I make the following orders:
[a] Granting permission for the applicants’ proceedings to be commenced
by way of originating application.
1 Re Beaton [2015] NZHC 1304.
[b] Dispensing with service on each of the Official Assignee, the Treasury, Bank of New Zealand, Erin Owen Stables and Victoria Jillian Lambert.
[c] Vesting the disclaimed undivided one third share of Erin Owen Stables and Victoria Jillian Lambert in the property at 38 Kowhai Drive, Te Kouma, Coromandel, comprising all that parcel of land containing 1128 square metres more or less, being on lot 24
Deposited Plan South Auckland 17072, and more particularly described in Certificate of Title SA15C/1117, South Auckland Land Registry as follows:
[i] Half of the undivided one third share in the property (being a one sixth share) in Owen Joseph Stables and Leone Henrietta Stables; and
[ii] Half of the undivided one third share of the property (being a one sixth share) in Jonathan Henry Stables, Nicola Stables and Joanne Rachel McLean as trustees of the Stables Family Trust.
[14] I make no order as to costs.
Muir J