Wilkins v Official Assignee - [2016] NZHC 1742

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-003086 [2016] NZHC 1742

BETWEEN
ALLAN KENITH WILKINS

Applicant

AND

OFFICIAL ASSIGNEE Respondent

Hearing: 25 July 2016

Appearances:

Mr Wilkins the Applicant in person
G Caro for the Official Assignee
N H Malarao/K Muirhead for Housing New Zealand
Corporation

Judgment:

29 July 2016

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
29.07.16 at 3:00pm, pursuant to
Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar
Date……………

A K WILKINS v OFFICIAL ASSIGNEE [2016] NZHC 1742 [29 July 2016]

Background

[1] Mr Wilkins applies under s 226(1) and (2)(a) of the Insolvency Act 2006 (the

Act) to appeal the decision of the Official Assignee (the Assignee). [2] Mr Wilkins was adjudicated bankrupt on 11 December 2014.
[3] On 18 April 2016 the Assignee accepted a claim of Housing New Zealand Corporation (HNZC) in Mr Wilkins bankruptcy. The claim was for $151,129.97 and was admitted in full.

[4] The claim of HNZC relies on the judgment of Judge Sinclair in the District court delivered on 19 December 2012. The Assignee considers the issue of admissibility of the claim primarily derives from that judgment.

[5] Mr Wilkins s 226 application is about his challenge of the Assignee’s decision accepting the claim of HNZC. Section 238 of the Act enables the court to make an order cancelling an admitted creditor’s claim or reducing the amount claimed if it considers that the claim is improperly admitted.

[6] Mr Caro’s submissions on behalf of the Assignee focus on situations as appear in this case, when hearing a s 238 application, the court is asked to look behind a judgment against the bankrupt. His submissions identify case authority that has reviewed the ability of the bankruptcy court to look behind the judgment relied on by a creditor.

[7] HNZC appears to respond to claims that there is sufficient in the issues raised by Mr Wilkins’ application to warrant the cancellation of its bankruptcy creditor claim.

[8] Mr Wilkins case has a long history. A chronology is required.

[9] This judgment will then address issues affecting a court’s ability to “look

behind” a court judgment.

[10] Finally this Court will address the claims raised by Mr Wilkins upon his application.

Chronology

[11] Between March 2004 and 11 March 2005 Mr Wilkins applied to become a tenant of HNZC by completing needs assessment interviews (NAI) with HNZC interviewers who completed NAI forms based on the information provided, which Mr Wilkins signed. At time of the NAI interview Mr Wilkins did not disclose he was the sole shareholder and director of Make It Limited, a company which had purchased two Auckland properties in the previous four months or, of any income from that company.

[12] In the period 21 March 2005 to 7 March 2008 Mr Wilkins completed income- related rent subsidy forms (IRR). Those were required to calculate the amount of rent to be charged with reference to a person’s household income or benefit level.…

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 Wilkins v Official Assignee

Details

AGLC: Wilkins v Official Assignee [2016] NZHC 1742
Case: [2016] NZHC 1742
Decision Date: 29 July 2016

CaseChat Overview and Summary

Allan Kenneth Wilkins applied to appeal the Official Assignee's decision to accept the Housing New Zealand Corporation's claim against him in his bankruptcy. Wilkins argued that the Assignee should have looked behind the judgment of Judge Sinclair, which had found him liable for a debt arising from income-related rent he had paid while renting an HNZC property. The Assignee argued that the judgment was properly admitted and that the court should not look behind it. The key legal issues were whether the court and the Assignee could look behind the judgment and, if so, whether they should have done so in this case.

The court examined the principles governing when a court and an Assignee may look behind a judgment debt. It noted that while there are no strict rules, the court may look behind a judgment if there are substantial reasons for questioning whether there was in truth and reality a debt due. However, the court may be less inclined to look behind a judgment that followed a fully contested hearing. The court also noted that the Assignee has a discretion to accept a judgment debt as satisfactory proof of the debt, but this discretion should not be exercised where there are substantial reasons to question the existence of the debt.

Applying these principles, the court found that the Assignee appropriately made inquiries before deciding to admit the HNZC claim. While Wilkins argued that he had not been asked to provide certain information when applying for a tenancy and income-related rent, the court found that Judge Sinclair had properly considered this issue and made findings against Wilkins. The court also found that Wilkins had not made out a prima facie case of miscarriage of justice or other circumstances that would justify the court looking behind the judgment.

Accordingly, the court dismissed Wilkins' application. The court found that the Assignee appropriately exercised his discretion in admitting the HNZC claim and that Wilkins had not shown that the Assignee's decision ought to be overturned. The court noted that applications for costs would be considered separately.

Orders