Williams v Simpson HC Hamilton CIV 2010-419-419

[2010] NZHC 1972

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-419

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:      12 November 2010

JUDGMENT (NO. 8) OF HEATH J

This judgment was delivered by me on 12 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 2010-419-419  12 November 2010

Use of transcripts of private examinations

[1]      In  my judgment  of  10  November  2010,[1]   I deferred  consideration  of  Mr Crossland’s application, on behalf of Mr Williams, to append the transcript of Ms Mann’s examination of 21 October 2010, together with “all other past and future transcripts of interviews”, as evidence in proceedings brought by Mr Williams in relation a property on the Isle of Wight and amounts held in an account in the name of James Walter Smith at the Nationwide Building Society in Swindon.  I indicated I would consider further submissions from counsel, before determining the point.

[1] Williams v Simpson (No. 7) HC Hamilton CIV 2010-419-1174, 10 November 2010 at paras [5] and [6]. 

[2]      Mr Morgan QC, for Ms Mann, offers no opposition to use of the transcript in English proceedings that relate to the property in the Isle of Wight and the Nationwide Building Society account.

[3]      Mr Clough, a co-trustee of the B V Adams No 2 Trust with Ms Mann, offers no opposition to the orders sought but requests that he and others have access to the transcript also.  On his behalf, Mr O’Neill submitted that “in a desire to see even- handedness, Mr Clough would request that the transcript also be released to him in that it is an examination of his co-trustee”.

[4]      No other counsel has sought to be heard on this issue.

[5]      I make  an  order  sought  by Mr  Crossland,  as  set  out  in  para  [6]  of  my judgment of 10 November 2010.[2]     I do so on the basis outlined in Re Baird (A Bankrupt),[3] to which I referred in that judgment.[4]   I consider that Mr Williams ought to be able to use the transcript in the same way that the Official Assignee would be entitled to use it, without Court permission, in civil proceedings in relation to a bankrupt in New Zealand.

[2] Ibid, para [6].

[3] Re Baird (A Bankrupt) [1994] 2 NZLR 463 (HC).

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

[6]      I do not consider it is necessary to grant permission for any other party to view the transcript of Ms Mann’s examination.  If the need arises for a transcript of any private examination to be made available to a particular party in the interests of overall fairness, specific application can be made for that purpose, on notice to affected parties.

Whether New Zealand tax debt can be admitted to proof in an English bankruptcy

[7]      As a result of research being undertaken for a different purpose, my attention has been drawn to art 13(1) and (3) of the Cross-Border Insolvency Regulations

2006 (SI 2006/1030) (UK).  My understanding is that art 13(3) forbids challenge of a claim by a foreign creditor solely on the grounds that it is a claim by a foreign tax or social security authority.  That may affect the opinion of the English solicitor who gave expert evidence on behalf of Mr Williams as to the applicability of the principle

in Government of India v Taylor[5] in the present case.

[5] Government of India v Taylor [1955] AC 491 (HL).

[8]      I raise this issue because it was a point to which I specifically referred when discussing  the  possible  appointment  of  an  Examiner,  in  my  judgment  of  10

November 2010.[6]   Mr Crossland may wish to seek further instructions on this point,

[6] Williams v Simpson (No. 7) HC Hamilton CIV 2010-419-1174, 10 November 2010 at paras [11] and [12].

to ascertain whether the provision to which I have referred affects any opinion expressed by his expert.

P R Heath J

Delivered at 2.00pm on 12 November 2010