Walker v Official Assignee - [2014] NZHC 975

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001056 [2014] NZHC 975

BETWEEN
ROBERT BRUCE WALKER

First Applicant

AND

PROPERTY VENTURES LIMITED Second Applicant

AND

FIVE MILE HOLDINGS LIMITED Third Applicant

AND

THE OFFICIAL ASSIGNEE in bankruptcy of the property of DAVID IAN HENDERSON

Respondent

Hearing: 7 May 2014

Appearances:

T G H Smith for Applicants
G Slevin for Respondent
D I Henderson appearing in Person

Judgment:

12 May 2014

JUDGMENT OF WHATA J

[1] The applicants have filed an originating application for admission of proof of debts in respect of Mr Henderson’s estate. Mr Henderson was formerly a director of a company, PVL, now in liquidation. He is said to be liable to that company for a significant sum of money for, among other things, breach of his duties as a director.

[2] The application for admission of proof of debt under s 237 accords with the process identified in a judgment of this Court of 19 April 20131 and an earlier
judgment of 6 March 2013.2

1 Walker & Ors v Forbes & Ors [2013] NZHC 828
2 Walker & Ors v Forbes & Ors [2013] NZHC 412.

WALKER & ORS v OFFICIAL ASSIGNEE [2014] NZHC 975 [12 May 2014]

[3] But Mr Henderson opposes the application on the basis that no creditor’s

claim form, as defined under the Insolvency Act 2006 has been filed.

[4] The essential issue is whether or not the proof of debt claim sent to the Official Assignee attaching a cover letter and a copy of the statement of claim filed in proceedings -2486 was “evidence” for the purposes of s 233 of the Act and regulation 12(1)(c) of the Insolvency (Personal Insolvency) Regulations 2007. If not, I must then decide whether a valid claim was filed at all.

The wider context

[5] The wider context to this application is recorded at [4] – [9] of my March

2013 judgment dealing with related proceedings, which I repeat here for ease of reference:

[4] The first plaintiff, Mr Walker, is the liquidator of Property Ventures Limited (PVL) and many of its subsidiaries. These companies were placed into liquidation with estimated losses of at least $150 million. Mr Henderson was a managing director of PVL, (though he says not at all material times). He was adjudged bankrupt on 29 November 2010. The claim against Mr Henderson was commenced on 12 November 2012 and comprises seven causes of action against the directors of PVL for allegedly serious breaches of their duties.

[5] The relief sought by the plaintiffs includes the following:

(a) Declarations that the PVL directors have breached their duties under ss 131, 135, 136, 137 of the Companies Act
1993;

(b) Orders pursuant to s 130(1) of the Companies Act 1993 that the PVL directors pay to the first plaintiffs the sum of $100 million by way of compensation or such other sum as the Court thinks fit;

(c) An order banning the PVL directors from acting as directors of companies under…

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 Walker v Official Assignee

Details

AGLC: Walker v Official Assignee [2014] NZHC 975
Case: [2014] NZHC 975
Decision Date: 12 May 2014

CaseChat Overview and Summary

The case of Walker v Official Assignee, heard in the High Court of New Zealand, involved an application for the admission of proof of debts in respect of the estate of David Ian Henderson, who was a former director of Property Ventures Limited (PVL), a company now in liquidation. The applicants, including Robert Bruce Walker, the liquidator of PVL, sought to hold Mr Henderson liable for a significant sum of money for alleged breaches of his duties as a director. Mr Henderson opposed the application on the grounds that no creditor’s claim form, as defined under the Insolvency Act 2006, had been filed. The court was required to determine whether the proof of debt claim sent to the Official Assignee, attaching a cover letter and a copy of the statement of claim filed in the proceedings, constituted “evidence” for the purposes of section 233 of the Act and regulation 12(1)(c) of the Insolvency (Personal Insolvency) Regulations 2007. If not, the court had to decide whether a valid claim had been filed at all.

The court considered the statutory scheme of subpart 9 of the Insolvency Act, which deals with creditors’ claims and provable debts, and noted that the reference to “evidence” simply contemplated that the creditor would provide cogent information to enable the Official Assignee to examine the claim. The court held that in the context of the present case, the applicants had submitted sufficient information in the statement of claim to trigger an assessment process under the Act. The court also noted that the statutory remedy for a deficient claim was provided by section 234, which allows the Official Assignee to require further evidence if necessary. The court concluded that there was no need to presumptively reject claims based on a lack of evidence and that sufficient information was supplied to satisfy the basic requirements set out in regulation 12 for the purpose of the lodgement of the claim. The court admitted the proof of debt and ordered that the costs be reserved.

Orders