Wallace v Yee HC Wellington CIV-2010-485-1003

[2011] NZHC 744

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1003

IN THE MATTER OF     the Insolvency Act 2006

AND IN THE MATTER OF THE OFFICIAL ASSIGNEE

BETWEEN  TONY JAMES WALLACE AND KATHLEEN MARAEA HUDSON Judgment Creditor

ANDPETER YEE Judgment Debtor

Hearing:         20 June 2011

(Heard at Wellington)

Counsel:         P.R.W. Chisnall - Counsel for Official Assignee

Judgment:      20 June 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Official Assignee, Insolvency and Trustee Service, Private Bag 5901, Wellington

TJ WALLACE AND KM HUDSON V P YEE HC WN CIV-2010-485-1003 20 June 2011

[1]      Before the Court is an application by the Official Assignee to annul the adjudication in bankruptcy of Mr Peter Yee (the bankrupt).

[2]      The bankrupt was adjudicated bankrupt by this Court on 23 August 2010.

[3]      The present application by the Official Assignee is made pursuant to s 309 (1)(b) Insolvency Act 2006 on the basis that the bankrupt’s debts have been or are to be fully paid or satisfied and that the Official Assignee’s fees and costs incurred in the bankruptcy have been paid.

[4]      The application and supporting material have been served in terms of the requirements of the Insolvency Act 2006.

[5]      There is no opposition to the present application before the Court.

[6]      Having considered the application and the supporting affidavit filed on behalf of the Official Assignee, I am satisfied that an order annulling the adjudication should be made in terms of s 309(1)(b) Insolvency Act 2006.

[7]      This is on the basis that all the bankrupt’s debts have been paid in full (subject to a matter I note below) together with the Official Assignee’s fees and costs.

[8]      In the affidavit of Mark John Atwell in support of this application sworn 24

May 2011 the Official Assignee indicates that the order annulling the bankruptcy is sought provided that:

(a)      $100,000.00 (presently held by the Official Assignee) is paid into this Court pending resolution of the bankrupt’s Employment Court action against Tony Wallace and Kathleen Hudson and resolution of Tony Wallace’s loan and generator claims.  It is suggested by the Official Assignee that these funds only be released to the parties upon resolution or by a relevant Court order; and

(b)The Official Assignee is to retain sufficient funds to pay all admitted claims and the Official Assignee’s unpaid costs and disbursements as set out in the attached Schedule 3 to that affidavit.

[9]      I am satisfied that these conditions are appropriate.

[10]     That said an order is now made pursuant to s 309(1)(b) Insolvency Act 2006 annulling the adjudication in bankruptcy of the bankrupt Mr Peter Yee which order for adjudication was dated 23 August 2010.

[11]     This order is made conditional upon the following:

(a)      That  the  sum  of  $100,000.00  is  paid  into  this  Court  pending resolution of the bankrupt’s Employment Court action against Tony Wallace and Kathleen Hudson and resolution of Tony Wallace’s loan and generator claims, such funds only to be released to the parties upon resolution of those claims or by a relevant order of this Court being made; and

(b)The Official Assignee is to retain sufficient funds to pay all admitted claims of the bankrupt and the Official Assignee’s unpaid costs and disbursements as outlined in Schedule 3 to the affidavit of Mark John

Atwell filed herein sworn 24 May 2011.

Associate Judge D.I. Gendall