Watson v Attorney-General for the Secretary of the Treasury

[2021] NZHC 1596

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-781

[2021] NZHC 1596

UNDER

s 119 of the Insolvency Act 2006 and Part 19 of the High Court Rules 2016

IN THE MATTER

of an application for a vesting order in respect of land in the bankruptcy of Andrew Philip Watson

BETWEEN

ANDREW PHILIP WATSON

Applicant

AND

ATTORNEY-GENERAL FOR THE SECRETARY OF THE TREASURY

Respondent

Date of hearing:	30 June 2021
Appearance:	N W Taefi for the applicant
Date of judgment:	30 June 2021

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 30 June 2021 at 4.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

N W Taefi, Barrister, Auckland Snedden & Associates, Auckland

Copy to:
Crown Law, Wellington

WATSON v ATTORNEY-GENERAL FOR THE SECRETARY OF THE TREASURY [2021] NZHC 1596 [30

June 2021]

[1]                  As duty judge, I have Mr Watson’s applications for leave to bring this proceeding as an originating application, and for an order vesting property in him.

[2]                  Mr Watson formerly was adjudicated bankrupt, from which he since has been discharged. While bankrupt, the Official Assignee disclaimed as ‘onerous’ his interest in an apartment in Auckland’s Mount Wellington, ownership of and all rights in the same then passing to the Crown.1 The property is subject to a first ranking mortgage in favour of the ASB bank.

[3]                  Mr Watson now seeks title to the property revests in him. The caveators consent, as does Mr Watson’s wife. ASB’s interest is protected by its mortgage. Since discharge of Mr Watson’s bankruptcy, the Official Assignee has no standing. Treasury abides my decision.

[4]                  The just, speedy, and inexpensive determination of this straightforward and unopposed proceeding means the interests of justice are in favour of its commencement by originating application.2

[5]                  Section 119 of the Insolvency Act 2006 enables a person suffering loss or damage as a result of the Official Assignee’s disclaimer to apply for an order the disclaimed property be vested in that person.3 That includes the bankrupt.4 I am to be satisfied “it is fair” the property should be vested in the applicant.5 Coordinate decisions of this Court hold “this assessment should be made in a holistic manner and in light of all the surrounding circumstances the Court considers relevant”.6

[6]                  Plainly Mr Watson is entitled to seek vesting, even if no longer the bankrupt, then as a person suffering loss by the Official Assignee’s disclaimer. The most material

1      Fish Man Ltd (in liq) v Hadfield [2017] NZCA 589, [2018] 2 NZLR 428 at [34], approving Rural Banking and Finance Corporation of New Zealand Ltd v Official Assignee [1991] 2 NZLR 351 (HC) at 360.

2      High Court Rules 2016, r 19.5.

3      Insolvency Act 2006, s 119(1).

4      Section 119(2).

5      Section 119(3).

6      Robinson v IAG New Zealand Ltd [2016] NZHC 3149 at [50]; Ravelich v Manning [2018] NZHC 255 at [13]; Goldstone v Goldstone [2019] NZHC 1649 at [18].

circumstance is he borrowed money to maintain the property, which he wishes to repay from the property’s sale. No one resists. It is fair the property should be vested in him.

[7]I therefore order:

(a)Mr Watson has leave to commence this proceeding by originating application;

(b)the Attorney-General, for the Secretary of the Treasury, substitutes for the Official Assignee as respondent; and

(c)the property vests in Mr Watson.

—Jagose J