Application by Mitchell [2016] NZHC 2473 (18 October 2016)

Last Updated: 25 November 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-350 [2016] NZHC 2473

UNDER	Section 119(2) of the Insolvency Act 2006
IN THEMATTER	of JACQUELINE DOROTHY MITCHELL
IN THE MATTER	of an application by Jacqueline Dorothy Mitchell for a vesting order following a Disclaimer of Property by the Official Assignee dated 8 December 2014
BETWEEN	JACQUELINE DOROTHY MITCHELL Applicant

Hearing:	On the papers
Counsel:	D Delic for the Applicant
Judgment:	18 October 2016

_{JUDGMENT OF MUIR J}

This judgment was delivered by me on Tuesday 18 October 2016 at 2.00 pm

Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:..............................

Counsel/Solicitors:

D Delic, SD Legal Limited, Hamilton

An application by J D Mitchell for vesting order [2016] NZHC 2473 [18 October 2016]

[1] This is a without notice interlocutory application for permission that a proceeding under s 119(2) of the Insolvency Act 2006 be commenced by way of originating application and for consequent orders on the papers.

[2] The background is that the applicant, Jacqueline Mitchell and her husband are joint tenants in equal shares for a property located at 34 Smith Avenue Huntly (CFR Identifier SA44D/161, South Auckland Registry, as being Lot 2 on Deposited Plan 52820). The applicant was adjudicated bankrupt on 21 October 2014.

[3] On 8 December 2014 the Official Assignee disclaimed his interest in the property as a result of which the applicant’s half share vested in the Crown bona vacantia.

[4] The property is subject to a mortgage in favour of Westpac Bank under mortgage number 7100199.3.

[5] In November 2013 the applicant and her husband separated and they are currently engaged in a division of their relationship property. Subsequently, the parties fell into default under their mortgage and in June 2016 Westpac issued a Property Law Act Notice.

[6] Without prejudice to its rights under that Notice Westpac has indicated a willingness to allow the applicant and her husband to dispose of the property by private treaty thereby maximising their sale price.

[7] The property is currently listed for sale with Lugtons Real Estate Limited, however, as a result of the disclaimer of interest by the Official Assignee neither the Official Assignee nor the applicant can deal with the property, including by way of execution of an agreement for sale and purchase or any transfer document.

[8] The affidavit of Ms Mitchell in support of originating application annexes correspondence from the Official Assignee advising any application under s 119(2) need not be served on it because it no longer retains any interest in the property.

[9] Further correspondence from the Official Assignee confirms that the Official Assignee does not oppose the application for the bankrupt’s share of the property to be revested in her.

[10] In addition the affidavit annexes correspondence from Westpac Banking Corporation confirming that the Bank consents to an application revesting the property and from the Treasury confirming that it does not wish to be served with any application, will abide the ruling of the Court, and does not object to the orders sought.

[11] A separate affidavit has been filed by Mark Mitchell confirming that he has read his former wife’s affidavit in support of her application and confirms that he supports orders in the terms sought.

[12] In a recent and similar case in the matter of an application by Andrew Robert Beaton,¹ Whata J noted that since all parties affected by the application either consented or did not oppose the vesting, it was appropriate in the interests of justice that orders be made. In that case orders as to service were made on the relevant parties who then responded indicating their positions. That outcome has been predicated in the present case by the various correspondences which I refer to. I am satisfied in that context that service may be dispensed with and that the substantive orders sought by Ms Mitchell may be made.

[13] Accordingly, I make the following orders:

(a) Granting permission for the applicant’s claims to be commenced by

way of originating application.

(b) Dispensing with service on each of the Official Assignee, Westpac

New Zealand Limited, the Treasury and Mark Robert Mitchell.

(c) That the interests of Jacqueline Dorothy Mitchell in the property at 34

_{Smith Avenue, Huntly (CRF Identifier SA44D/161, South Auckland}

¹ Re Beaton [2015] NZHC 1304.

Registry, being Lot 2, Deposited Plan 52820) currently vested in the

Crown bona vacantia, be vested in Jacqueline Dorothy Mitchell.

_{(d) There be no order regarding costs.}

Muir J