Williams v Simpson HC Hamilton CIV 2010-419-1174

[2010] NZHC 2101

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-1174

UNDER  the Insolvency (Cross-border) Act 2006

BETWEEN  STEVEN JOHN WILLIAMS Applicant

ANDALAN GERAINT SIMPSON Debtor

Hearing:         (on the papers)

Counsel:         K J Crossland and P J Morris for Applicant

P F Gorringe for Debtor
D M O'Neill for Mr Clough
P J Morgan QC for Ms Mann
A Reimer-Reeder and J Cuellar for Commissioner of Inland Revenue
G Caro for Official Assignee

Judgment:      23 November 2010

JUDGMENT (NO. 9) OF HEATH J

This judgment was delivered by me on 23 November 2010 at 2.00pm 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
Companies Office, PO Box, Auckland
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  23 November 2010

[1]      In  my  judgment  of  10  November  2010,[1]   I  requested  submissions  from counsel on a proposal for the appointment of Hon Sir Hugh Williams QC as an Examiner.   I indicated that I would give judgment on the papers, on receipt of submissions, to be filed by 19 November 2010.

[1] Williams v Simpson (No. 7) HC Hamilton CIV 2010-419-1174, 10 November 2010.

[2]      I have received submissions from counsel for Mr Williams and Mr Simpson respectively.  Each advises that settlement discussions are underway.  Mr Simpson has now acknowledged that money held in the bank accounts in the names of J W Smith and Henmur Ltd are his personal property.

[3]      I have no desire to derail the settlement process.  However, counsel will be aware that all realised assets are held on behalf of the Court and are subject to Court direction in due course.  Therefore, any settlement proposal will need the sanction of the Court, before it is effected.

[4]      On the basis of Mr Gorringe’s memorandum, on behalf of Mr Simpson, I declare that money held in the two bank accounts of Henmur Ltd at SBS Bank in Hamilton[2]  is property of Mr Simpson that may be realised and held on trust by the Official Assignee, pending further order of the Court.

[2] Williams  v  Simpson  (Reasons  for  Judgment  No.  6),  HC  Hamilton  CIV  2010-419-1174,  10 November 2010 at para [25]. 

[5]      As the money held on behalf of J W Smith is outside New Zealand, I leave that for Mr Williams to realise.

[6]      As I understand it, the ownership of the property on the Isle of Wight has not yet  been  resolved.    Mr  Gorringe  has  asked  me  to  correct  an  inadvertent  mis- statement in judgment (No. 6)[3]  by making clear that beneficial ownership of that property is “unclear”.   I accept that I may have misunderstood what Mr Gorringe told me at the hearing.

[3] Williams v Simpson HC Hamilton CIV 2010-419-1174, 5 November 2010, para [9] and Reasons for Judgment (No. 6) para [18](d).

[7]      Mr  Crossland,  for  Mr  Williams,  has  confirmed  the  “fruitful  dialogue” between representatives of Mr Williams and Mr Simpson.   In addition, the Commissioner of Inland Revenue is being brought into discussions.  There is now greater potential for a successful outcome in the discussions involving the Commissioner as Mr Williams now recognises that it is open to him, as a matter of

English law, to admit a foreign revenue claim in the English bankruptcy.[4]

[4] Williams v Simpson (No. 8) HC Hamilton CIV 2010-419-1174, 12 November 2010 at para [7].

[8]      I agree with counsel that consideration of the appointment of an Examiner ought to be deferred until after negotiations have been progressed and the Official Assignee’s next report is available on or before 17 December 2010.[5]   Leave to apply at short notice remains, should any difficulties emerge.

[5] Williams v Simpson (No. 6) HC Hamilton CIV 2010-419-1174, 5 November 2010 at para [12](l).

[9]      The Registrar is directed to allocate a case management conference (by telephone) as soon as practicable in the New Year, after consultation with me.

P R Heath J

Delivered at 2.00pm on 23 November 2010.