Counsel: K J Crossland and P J Morris for Applicant
P F Gorringe for Debtor
D M O'Neill for Mr Clough (personal capacity) C Bryant for Trustees of B V Adams No 2 Trust M Strang for Commissioner of Inland Revenue

Judgment: 12 October 2010

JUDGMENT (NO. 5) OF HEATH J

This judgment was delivered by me on 12 October 2010 at 4.30pm pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy Registrar

Solicitors:
Stace Hammond P O Box 19-101 Hamilton 3244
Tompkins Wake, PO Box 258, Hamilton Kerry Burroughs, PO Box 19307, Hamilton Anderson Lloyd, PO Box 201, Queenstown
Inland Revenue Department, PO Box 761, Waikato Mail Centre, Hamilton
Counsel:
P Gorringe, PO Box 7098, Hamilton
D M O’Neill, PO Box 815, Hamilton
P J Morgan QC, PO Box 19021, Hamilton

WILLIAMS V SIMPSON HC HAM CIV 2010-419-1174 [12 October 2010]

Contents

Introduction  [1] The legislation  [5] The history of the proceeding  [8] Recognition [17] Is Mr Williams a “foreign representative?  [21] Jurisdictional issues under Schedule 1  [25] Recognition as a “main proceeding
(a)   Centre of main interests  [30]
(b)   Submissions  [35] (c) Analysis  [41] Recognition as a non-main proceeding  [50] Request for aid: Section 8 of the Act  [67] Result  [88]

Introduction

[1] Mr Simpson lives at 35 Ann Street, in Hamilton. On 9 September 2009, notwithstanding his place of residence, he was adjudged bankrupt by the High Court of Justice in London (the English Court), on the petition of the Society of Lloyd’s (Lloyd’s). At the time the petition was presented, Lloyd’s asserted that it was owed
£242,920.29, based on a judgment obtained on 11 March 1998 in the sum of

£163,078.92, plus accrued interest and costs. Mr Williams, an English insolvency

practitioner, was appointed as trustee of Mr Simpson’s bankrupt estate.

[2] Mr Williams soon discovered there were no assets in the United Kingdom that he could realise for the benefit of Mr Simpson’s creditors. However, he received reliable information from which he formed the view that Mr Simpson had assets in New Zealand.

[3] On 10 September 2010, although Mr Simpson had been automatically discharged from the English bankruptcy the previous day,1 Mr Williams applied to this Court for an order recognising the English bankruptcy proceeding as a ―foreign main proceeding‖, under Schedule 1 of the Insolvency (Cross-border) Act 2006 (the
Act). Later, that application was amended, so that recognition was sought on one of

1 Uncontested evidence from an English solicitor establishes that this does not affect trustee in
bankruptcy’s rights to assets that vested in him prior to discharge.

three alternative bases: as a ―foreign main proceeding‖,2 a ―foreign non-main proceeding‖3 or under s 8 of the Act. The form of recognition or assistance afforded will determine the relief…

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 Williams v Simpson

Details

AGLC: Williams v Simpson [2010] NZHC 1786
Case: [2010] NZHC 1786
Decision Date: 12 October 2010

CaseChat Overview and Summary

The High Court of New Zealand Hamilton Registry was asked to determine whether the English bankruptcy of Alan Geraint Simpson should be recognised under the Insolvency (Cross-border) Act 2006 (the Act). Steven John Williams, the English trustee in bankruptcy, sought recognition of the English bankruptcy as a foreign main or non-main proceeding, or alternatively, to be granted assistance under s 8 of the Act. The Court was required to decide whether Mr Williams was a foreign representative, and if so, whether the English bankruptcy could be recognised under art 17 of Schedule 1 of the Act or alternatively, whether the Court should grant assistance under s 8. The Court found that Mr Williams was a foreign representative. However, the Court was not satisfied that the English bankruptcy was either a foreign main or foreign non-main proceeding. The Court found that Mr Simpson's centre of main interests was in New Zealand and that he did not have an establishment in England. The Court decided that, in the absence of recognition, it should exercise its discretion under s 8 of the Act to grant Mr Williams the same relief that he would otherwise have been entitled to under Schedule 1. The Court granted Mr Williams the relief that he had sought. It authorised the Official Assignee to take possession of the assets that had been seized, and to conduct a forensic analysis of the computer data and other documents in his possession. The Official Assignee was also authorised to determine ownership of the items seized, ascertain whether there were any other assets that would have vested in the trustee of the English bankruptcy and obtain a valuation of all bullion and other assets seized. The Court also directed that the Official Assignee advertise the orders made to assist the trustee of the English bankruptcy and call for any creditor of Mr Simpson in New Zealand to lodge a proof of claim.

Orders