Case v Ministry of Economic Development [2012] NZHC 125 (9 February 2012)

Last Updated: 24 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-6964 [2012] NZHC 125

UNDER The Insolvency Act 2006

IN THE MATTER OF the Bankruptcy of Robyn Marie Case

BETWEEN ROBYN MARIE CASE Applicant

AND MINISTRY OF ECONOMIC DEVELOPMENT Respondent

Hearing: 9 February 2012

Appearances: Mr Jones for Official Assignee

No appearance for bankrupt

Judgment: 9 February 2012

_{ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE}

Solicitors:

Official Assignee, Insolvency and Trustee Service, Auckland – c/o [e-mail]

Copy:

R M Case, 41 Melville Drive, Whakatane

CASE V MINISTRY OF ECONOMIC DEVELOPMENT HC AK CIV-2007-404-6964 9 February 2012

[1] The bankrupt filed an application 17 October 2011 seeking discharge having been adjudicated bankrupt on 1 September 2008. The application states on its face that it is made pursuant to s 294 of the Insolvency Act 2006.

[2] For present purposes there are two ways in which the state of bankruptcy may be ended. The first is if an application for an order is made under s 294 or alternatively if the bankruptcy comes to an end automatically after three years pursuant to s 291 of the Insolvency Act 2006. Ms Case’s application seems to be based upon s 294 as I have said, but given the timing of the application (just three years after adjudication) it would seem that she was invoking the automatic discharge provision under s 290. Whether she is correct in doing that or not it does not matter in the end because the Official Assignee has objected to a discharge. Quite apart from anything else, the Official Assignee says that an automatic discharge is not available to Ms Case because the three years that s 290 speaks of runs from the date when the bankrupt files a statement of affairs. The Official Assignee in his report says that such a statement of affairs has not been filed.

[3] In her affidavit Ms Case says at paragraph 2 that after she was adjudicated bankrupt, she now knows, she was required to complete a statement of assets for the Official Assignee. She goes onto say “I have not completed the assessment form”.

[4] In her affidavit Ms Case conflates the completion of an assessment form with providing a statement of affairs. I assume that the Official Assignee requires statements of affairs to be completed on an official standard form. That would make sense to ensure that all statements of affairs are completed in a uniform and comprehensive way. It would appear that there is no statutory form of notice required. However, it would seem to me that the statutory references to a statement of affairs carries with it an implicit recognition that the contents of such documents are sell settled, statements of affairs having been part of the insolvency landscape for a good number of years.

[5] The Official Assignee says that Ms Case has not completed such a statement of affairs. Ms Case in her affidavit agrees that she has not completed the assessment form but says:

5. However I have cooperated with the Official Assignee. I attended a creditor’s meeting. I have advised the Official Assignee of all my assets.

[6] She goes on to say that all her assets have been disposed of.

[7] Because Ms Case wishes to invoke her entitlement to an automatic discharge, there is an obligation on her to prove such factual matters as must be proved before the Court could properly make such an order. Those included three years have run since a statement of affairs was filed. The Official Assignee denies that such a statement of affairs was ever filed. Ms Case on the other hand gives equivocal evidence which while accepting that an “assessment form” has not been filed, she provided the equivalent information anyway. But then she goes on to itemise what information she has provided. It does not say anything about other matters which presumably would be covered in a statement of affairs including gifts and other liabilities. Dealing with the matter strictly on an onus of proof basis, their application is in difficulties. Furthermore she has not arranged to attend today or be represented by counsel to take matters further. The Court must therefore deal with the application on the basis of such material as it has. On doing so, I reach the inevitable conclusion that there is very real doubt concerning whether Ms Case has ever filed the required statement of affairs. That being so, doubt must also exist concerning whether the three year period at the conclusion of which an automatic discharge would be available, has actually expired.

[8] As I have said, the application which Ms Case has made appears to merge concepts of automatic discharge and, on the one hand, and applications for discharge from bankruptcy under s 294. They are different things. However, if the present application were to be dealt with as an application for discharge under s 294 it would appear that it must fail in any case because there is evidence before the Court that the bankrupt has not cooperated with the Official Assignee. There may be some explanation for that state of affairs but Ms Case has not appeared today or placed any evidence before the Court which would advance her side of the story.

[9] On any conceivable basis therefore, Ms Case is not entitled to a discharge at this point.

[10] In case the application was intended to be brought under s 294, I consider that it is appropriate, as counsel Mr Jones for the Official Assignee submits, that there ought to be an order under s 294(2) fixing the earliest date when the bankrupt may apply again.

[11] It would seem to me that given the unsatisfactory progress with the administration of the bankrupt’s estate to this point, that it is most unlikely that she would be entitled to a discharge in anything less than 12 months from today. That is to say even if she cooperated fully with the Official Assignee it would take time for the administration of the estate to work its way through. In other words, it would be a waste of time to permit a further application to be made while the state of affairs that is disclosed by the Official Assignee’s report continues to exist. For those reasons I direct that no application is to be brought for a discharge before 1

September 2012. Of course, the fact that she cannot apply before September does not mean that if she were to apply for a discharge Ms Case is assured of success. Such an application would be determined on its merits. The application dated 29

_{September 2011 which the bankrupt has brought is dismissed.}

J.P. Doogue

Associate Judge