NORRIS WARD McKINNON v SKELTON of Waimate North, Kaikohe [2023] NZHC 2016

NORRIS WARD McKINNON v SKELTON of Waimate North, Kaikohe [2023] NZHC 2016

Debtor failed to discharge the onus under s37 to show adjudication should be refused: there is prima facie entitlement to adjudication (judgment debt and served bankruptcy notice), and the unsatisfactory explanations and evidence of potential asset disposals and unexplained proceeds justify Official Assignee investigation; debtor's health and circumstances do not outweigh the need for investigation, so the court will not refuse adjudication and the matter is to be listed for bankruptcy proceedings.

Citation
[2023] NZHC 2016
Parties
Judgment Creditor/applicant: Norris Ward McKinnon; Judgment Debtor/respondent: Donald Alfred Skelton
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2023
Procedural Posture
Adjudication in Bankruptcy / Hearing and Decision on Adjudication Application
Outcome
Debtor's s37 application dismissed; proceeding to be listed for adjudication in bankruptcy
Legal Topics
Adjudication, Act of Bankruptcy, Preferential Payments, Asset Transfers to Defeat Creditors, Official Assignee Investigation
Insolvency Bankruptcy Civil Procedure Property Adjudication Act of Bankruptcy Preferential Payments Asset Transfers to Defeat Creditors +1 more

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Parties

Norris Ward McKinnon

Judgment Creditor/applicant

Donald Alfred Skelton

Judgment Debtor/respondent

Procedural Posture

Adjudication in Bankruptcy / Hearing and Decision on Adjudication Application

Legal Issues

  1. 1 Whether the debtor committed an act of bankruptcy (non‑compliance with bankruptcy notice)
  2. 2 Whether the debtor transferred or disposed of assets to defeat creditors (cultivar sale and land sales)
  3. 3 Whether it is just and equitable under s37 of the Insolvency Act 2006 to refuse adjudication

Ratio Decidendi

Debtor failed to discharge the onus under s37 to show adjudication should be refused: there is prima facie entitlement to adjudication (judgment debt and served bankruptcy notice), and the unsatisfactory explanations and evidence of potential asset disposals and unexplained proceeds justify Official Assignee investigation; debtor's health and circumstances do not outweigh the need for investigation, so the court will not refuse adjudication and the matter is to be listed for bankruptcy proceedings.

Court Disposition

Debtor's s37 application dismissed; proceeding to be listed for adjudication in bankruptcy

Orders

  • Debtor's application under s37 of the Insolvency Act 2006 to refuse an adjudication order is dismissed
  • Proceeding to be listed in the next available bankruptcy list in the Whangarei High Court