Watson

[2015] NZHC 2728

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CIV-2015-419-369

[2015] NZHC 2728

UNDER

Part 19 of the High Court Rules and the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of THOMAS WILLIAM WATSON

AND

IN THE MATTER

of an application for a Vesting Order in respect of land pursuant to s 119 Insolvency Act 2006

BETWEEN

ROCHELLE ANNE WATSON

Plaintiff

On the papers
Counsel:	LB Tucker for Plaintiff
Judgment:	5 November 2015

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 5 November 2015 at 11:00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Watson v Watson [2015] NZHC 2728 [5 November 2015]

[1]                 Rochelle Anne Watson and Thomas William Watson were in a domestic relationship between 2003 and 2013 and, following a period of separation, resumed living together in early 2015.

[2]                 On 17 December 2010, Mr Watson and Ms Watson purchased a property at 38A Whittaker Street, Kihikihi (Certificate of Title SA19B/564 described as Lot 2 Deposited Plan South Auckland 19795) (“the property”) as tenants in common in equal   shares.   Mr   Watson  was  adjudicated  bankrupt  on  30 April 2012.   On   17 April 2013, the Official Assignee disclaimed any interest in Mr Watson’s half share in the property under s 117 of the Insolvency Act 2006 (“the Act”). As a result, that half share vested in the Crown.

[3]                 Mr Watson was discharged from his bankruptcy on 22 August 2015 and Ms Watson now wishes to sell the property. She is prevented from doing so, however, because of the vesting of Mr Watson’s former half share in the Crown. This is causing Ms Watson ongoing financial losses due to the terms of the current mortgage no longer being favourable.

[4]                 Ms Watson seeks a vesting order under s 119 of the Act vesting in her the Crown’s half share previously held by Mr Watson. The Crown consents to the application and it is not opposed by Mr Watson.

[5]Section 119 of the Act provides:

119     Position of person who suffers loss as result of disclaimer

(1)A person suffering loss or damage as a result of disclaimer by the Assignee may—

(a)claim as a creditor in the bankruptcy for the amount of the loss or damage, taking account of the effect of an order made by the Court under paragraph (b):

(b)apply to the Court for an order that the disclaimed property be delivered to, or vested in, that person.

(2)The bankrupt may also apply for an order that the disclaimed property be delivered to, or vested in, the bankrupt.

(3)The Court may make an order under subsection (1)(b) or (2) if it is satisfied that it is fair that the property should be delivered to, or

vested in, the applicant.

[6]                 I am satisfied that Ms Watson is a person who could suffer damage through the disclaimer of the property by the Official Assignee, as a result of the financial inconvenience, and that it is fair that the disclaimed property should be vested in her.

[7]I make the following orders accordingly:

[a]This proceeding may be commenced by way of originating application.

[b]Service of the proceeding on any other party is dispensed with.

[c]The Crown’s interest in the property at 38A Whittaker Street, Kihikihi (being the land described in Certificate of Title SA19B/564 described as Lot 2 Deposited Plan South Auckland 19795) shall be vested in Rochelle Anne Watson with the intent that she shall become the sole registered proprietor of the property.

[8]                 I reserve leave for the making of any application for necessary consequential directions.

...........................................

Toogood J