Strawbridge v Official Assignee

[2014] NZHC 2025

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2014-488-93 [2014] NZHC 2025

BETWEEN  MARY JACQUELINE STRAWBRIDGE Appellant

ANDOFFICIAL ASSIGNEE Respondent

Hearing:                   (on the papers)

Counsel:                  M J Strawbridge, in person, Appellant

G Caro for Respondent

Judgment:                26 August 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 26 August 2014 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
G Caro, Insolvency and Trustee Service, Auckland

Copy to:

M J Strawbridge

STRAWBRIDGE v OFFICIAL ASSIGNEE [2014] NZHC 2025 [26 August 2014]

[1]      Ms Strawbridge appeals against a decision of an Official Assignee made on

21 May 2014.1    At a case management telephone conference on 30 July 2014, the parties agreed that each would file memoranda with supporting papers and that I should give a decision on the papers.  There will be no order as to costs, whatever the outcome of the appeal.

[2]      Ms Strawbridge was adjudged bankrupt on 29 March 2011.   The Official Assignee took the view that she had a one-third interest in a property at Russell.  A caveat was lodged against that property to protect the Official Assignee’s perceived interest.  As it happened, Ms Strawbridge was one of three trustees who held the property as part of the deceased estate of her late father, and the property was subject to a life interest in favour of her mother.

[3]      Ms   Strawbridge   asked   the   Official  Assignee   to   remove   the   caveat. Eventually, he did so.  The Official Assignee now accepts that he has no caveatable interest in the land.   The Official Assignee may have a claim in respect of any interest that may pass to Ms Strawbridge under her late father’s Will, if her mother were to pass away.  Notice has been given to the trustees of the deceased estate in that regard.2

[4]      Ms Strawbridge received a discharge from bankruptcy, on 29 March 2014. Understandably, she is concerned that the historical record maintained by the Registrar-General of Land (the Registrar) will continue to refer to a caveat (albeit one that has been withdrawn) that refers to her previous status as a bankrupt.

[5]      On 18 May 2014, Ms Strawbridge wrote to the Official Assignee’s solicitor,

Mr Caro.  She concluded with the following query:

In considering the matter of the caveat it occurs to me that the OA’s mistake has had the effect of creating an enduring public record of my bankruptcy irrespective of its withdrawal.  I understand that the Land Transfer Act 1952 provides that the Registrar may correct errors in certificates of title or in the register and may cancel or correct any computer register and, if appropriate, create a new computer register.   Based on your evidence that the OA’s actions were wrong, it would seem appropriate that the certificate of title be

1      Insolvency Act 2006, s 226.

2      Trustee Act 1956, s 39.

corrected by expunging all record of this caveat.  Are you able to assist with this?

[6]      On 21 May 2014, Mr Caro responded, on behalf of the Official Assignee.  He wrote:

In  terms  of  your  request  that  the  OA takes  steps  to  have  the  register corrected, I am assuming you are referring to correction by the Registrar under section 80 of the Land Transfer Act 1952.  The OA does not think that section would apply to a caveat lodged and then withdrawn.   Even if the Registrar had such a power in respect of a withdrawn caveat the OA will not be asking the Registrar to exercise that power in this case.  That is for the following reasons:

1.        The caveat has been withdrawn.

2.        The caveat was lodged in good faith.

3.While the OA does not have an interest in the land he does have an interest in the deceased estate of which the land forms part.

4.Your bankruptcy will remain on the public register of discharged and undischarged bankrupts maintained by the OA.   It will only be removed four years after the date of discharge.  See section 449(4)(a) of the Insolvency Act 2006.

5.That  you  were  adjudicated  bankrupt  will  always  be  a  matter  of public  record  as  the  OA is  required  to  advertise  all  bankruptcy adjudications in the Gazette.

I advise you of your right to appeal this decision of the OA under section 226 of the Insolvency Act 2006.

[7]      Ms Strawbridge exercised her right to appeal.   She challenges the Official Assignee’s  decision  to  decline  her  request  that  the  Official  Assignee  make application to the Registrar to exercise his or her power to correct errors on the title.

[8]      Since receiving the notice of appeal, the Official Assignee has made inquiries of the Registrar.  On 23 July 2014, in an email that was sent to Ms Strawbridge by Mr Caro the following day, the solicitor for the Registrar stated:

…

I confirm that section 80 [of the Land Transfer Act 1952] would have no application to the situation you describe, where a caveat has been entered in the Land Transfer Act register and later withdrawn by the caveator (who was in this case the OA).  Section 80 authorises the Registrar-General of Land (“RGL”) to correct errors and supply omissions in the register – in effect to correct recording mistakes made by Land Information New Zealand.   The

entering of a caveat is not an error or omission for the purposes of section

80.

For completeness, I confirm the RGL’s other correcting powers, in section

81, would also have no relevance for a caveat which has been withdrawn. Even if a caveat has been entered when that was not justified, the RGL

would not use section 81 to remove the entry but would require an aggrieved

party to obtain a withdrawal or lapse or removal by the Court under Land

Transfer Act provisions (ss 147, 145 & 145A and 143 respectively).

Even if section 80, or section 81, was applicable and the RGL did remove an entry that had been made in error, the record of the entry (and the record of its removal) would have to remain in the historic record.

…

[9]      Mr Caro forwarded to Ms Strawbridge a copy of a search of the computer register (which does not show the withdrawn caveat) and the historical search copy (which does).  The historical copy reveals that the caveat lodged on 18 April 2011 was withdrawn on 14 May 2014.

[10]     Ms Strawbridge’s challenge can only be to the Official Assignee’s decision not to request the Registrar to exercise powers under either s 80 or s 81.  Ultimately, the Registrar is the only public official with jurisdiction to exercise that power.  The Registrar knows of Ms Strawbridge’s concerns.   Yet, his position has been made clear in the correspondence to Mr Caro.3

[11]     The Registrar is not a party to this appeal.   I have no power, on an appeal such as this, to direct the Registrar to do something that is contrary to a position that has been taken.

[12]     The Registrar’s position is understandable.  There is no error on the record because a caveat was, in fact, lodged by the Official Assignee in bankruptcy of the property of Ms Strawbridge.  It was subsequently withdrawn.  The register reflects those dealings accurately.  Unfortunately for Ms Strawbridge, the privacy concerns that have driven her appeal are not recognised  in law as a means of removing

reference to an actual dealing from the register.

3      See para [8] above.

[13]     There is no legal basis  on which  I can make an order in favour of  Ms

Strawbridge.  Her appeal is dismissed, with no order as to costs.

P R Heath J

Delivered at 3.00pm on 26 August 2014