COMMISSIONER OF INLAND REVENUE V JP GOLLAN AS TRUSTEE IN THE GOLLAN FAMILY TRUST HC HAM CIV 2011-419-84

COMMISSIONER OF INLAND REVENUE V JP GOLLAN AS TRUSTEE IN THE GOLLAN FAMILY TRUST HC HAM CIV 2011-419-84

The Court found the jurisdictional requirements under Insolvency Act ss13 and 36 were met and the debtor failed to establish grounds under s37 to refuse adjudication: the debt is admitted and unpaid, the debtor is again trustee of the liable trust, disclosure is incomplete, and the trading of assets and speculative...

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Citation
openlaw-a8e1fc4c_6781_455c_9c8c_505728632108.pdf
Parties
Judgment Creditor: Commissioner of Inland Revenue; Judgment Debtor: James Patrick Gollan as trustee in the Gollan Family Trust; Creditor in Support: Creditor in support (CIV2011-419-1002)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 February 2012
Procedural Posture
Application for Adjudication Order (bankruptcy) / Hearing Adjourned to 19 March 2012 Pending Payment Undertakings
Outcome
Proceeding adjourned to 10am on 19 March 2012 to allow debtor to make payment undertakings; if payments are not made adjudication likely to be entered
Legal Topics
Adjudication, Act of Bankruptcy, Bankruptcy Notice, Discretion to Refuse Adjudication (s37), Relief Under Trustee Act S73, GST Liability, Official Assignee Investigation
Insolvency Law Bankruptcy Tax Law Trust Law Civil Procedure Adjudication Act of Bankruptcy Bankruptcy Notice +4 more

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Parties

Commissioner of Inland Revenue

Judgment Creditor

James Patrick Gollan as trustee in the Gollan Family Trust

Judgment Debtor

Creditor in support (CIV2011-419-1002)

Creditor in Support

Procedural Posture

Application for Adjudication Order (bankruptcy) / Hearing Adjourned to 19 March 2012 Pending Payment Undertakings

Legal Issues

  1. 1 Whether jurisdictional requirements under Insolvency Act 2006 ss 13 and 36 are met
  2. 2 Whether the Court should exercise its discretion under s 37 to refuse adjudication (including on grounds under Trustee Act s73)
  3. 3 Whether the debtor is able to pay his debts or whether it is just and equitable to refuse adjudication

Ratio Decidendi

The Court found the jurisdictional requirements under Insolvency Act ss13 and 36 were met and the debtor failed to establish grounds under s37 to refuse adjudication: the debt is admitted and unpaid, the debtor is again trustee of the liable trust, disclosure is incomplete, and the trading of assets and speculative funding justify Official Assignee supervision. Consequently the Court adjourned to allow the debtor to pay the undertaken sums but indicated that, absent payment, adjudication would likely be made on 19 March 2012.

Court Disposition

Proceeding adjourned to 10am on 19 March 2012 to allow debtor to make payment undertakings; if payments are not made adjudication likely to be entered

Orders

  • Proceeding adjourned to bankruptcy list at 10am on 19 March 2012
  • Debtor orally undertakes to pay $164,475.15 to Commissioner of Inland Revenue from incoming funds and $16,542.82 to creditor in CIV2011-419-1002; payments to be made as received