Stanley v Fielding-Link - [2023] NZHC 2259

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-1257

[2023] NZHC 2259

UNDER Section 8 of the Insolvency (Cross Border) Act 2006

IN THE MATTER OF

The bankrupt estate of Kaye Suzanne Fielding-Link (England)

BETWEEN

PAUL STANLEY and PAUL BARBER

Plaintiffs

AND

KAY SUZANNE FIELDING-LINK also

known as KAY SUZANNE LINK

Defendant

Hearing: 12 June 2023

Appearances:

K J Crossland and J S Langston for the plaintiffs R J Latton for the defendant

Judgment:

21 August 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 21 August 2023 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

STANLEY and BARBER v FIELDING-LINK [2023] NZHC 2259 [21 August 2023]

[1] The plaintiffs, Mr Stanley and Mr Barber, are the joint trustees in the English bankruptcy of the defendant, Ms Fielding-Link. The English bankruptcy Court has issued a letter of request for this Court to act in aid of the English bankruptcy proceeding.

[2] The plaintiffs seek orders, under s 8 of the Insolvency (Cross-border) Act 2006 (ICBA), to give effect to the letter of request.

Background

[3] Ms Fielding-Link and her husband, Matthew Link, lived in New Zealand from 1996 until 2010. During that period, in 2005, Ms Fielding-Link and Mr Link settled the Fielding-Link (No.2) Trust (the Trust). Ms Fielding-Link and Mr Link were trustees of the Trust, together with an independent trustee. In March 2005, the Trust purchased a commercial property at Mill Road, Helensville.

[4] Clause 11 of the deed for the Trust (the Trust Deed) empowers a settlor of the Trust (either Ms Fielding-Link or Mr Link) to advance the date of distribution for the Trust. If that power is exercised, the Trust fund is to be divided in half, with a half to be distributed to each settlor (or at their direction).

[5] In 2010, Ms Fielding-Link and Mr Link moved to England. Ms Fielding-Link taking up a position in her parents’ businesses in England.

[6] This did not work out as planned. Ms Fielding-Link’s parents separated, and their businesses collapsed. Acrimonious litigation followed. Some of it involved claims against Ms Fielding-Link.

[7] On 15 October 2015, Ms Fielding-Link was adjudicated bankrupt, upon her own petition, by the County Court in Liverpool. Her initial trustee in bankruptcy was a Mr Williams. On 30 October 2015, soon after being adjudicated bankrupt, Ms Fielding-Link provided Mr Williams with a copy of the trust deed for the Trust (the Trust Deed).

[8] The plaintiffs were appointed as joint trustees of Ms Fielding-Link’s estate in bankruptcy on 4 July 2016, replacing Mr Williams. They formed the view that Ms Fielding-Link was not co-operating in the administration of her bankruptcy. On 2 September 2016, they applied for an order suspending Ms Fielding-Link’s automatic discharge from bankruptcy, based on her alleged failure to co-operate.

[9] Ms Fielding-Link opposed the plaintiffs’ application, but the County Court…

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 Stanley v Fielding-Link

Details

AGLC: Stanley v Fielding-Link [2023] NZHC 2259
Case: [2023] NZHC 2259
Decision Date: 21 August 2023

CaseChat Overview and Summary

The case of Stanley v Fielding-Link involves the plaintiffs, Mr. Stanley and Mr. Barber, who are joint trustees in the English bankruptcy of the defendant, Ms. Kay Suzanne Fielding-Link. The plaintiffs seek orders under section 8 of the Insolvency (Cross-Border) Act 2006 to facilitate the administration of Ms. Fielding-Link's bankruptcy in New Zealand. The legal issues before the court include whether the court should exercise its discretion to grant assistance to the plaintiffs, whether the plaintiffs are seeking assistance to do something they could not do under English law, whether the assistance is necessary for the performance of the plaintiffs' functions as trustees in bankruptcy, and whether the assistance sought is consistent with New Zealand law. The court, after considering the principles governing the exercise of the discretion in section 8 of the Act, found that there was no compelling reason to decline the assistance sought by the plaintiffs. The court exercised its discretion to grant the assistance and ordered that the plaintiffs are entitled to costs. The plaintiffs are encouraged to reach an agreement on the quantum of costs, failing which, they are to file and serve a brief memorandum by a specified date, to which Ms. Fielding-Link is to respond with an equivalently brief memorandum.

Orders