WATSON v ATTORNEY-GENERAL FOR THE SECRETARY OF THE TREASURY [2021] NZHC 1596
Mr Watson, as a person who suffered loss from the Official Assignee's disclaimer, was entitled to apply under s119; given the absence of opposition, the protection of the mortgagee's interest, and Mr Watson's intention to repay borrowings from sale proceeds, it was fair to vest the property in him and the Court...
Source-derived case information.
- Citation
- [2021] NZHC 1596
- Parties
- Applicant: Andrew Philip Watson; Respondent: Attorney-General for the Secretary of the Treasury
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 30 June 2021
- Procedural Posture
- Vesting Order Under S119 Insolvency Act 2006 / Decision on Originating Application (duty Judge)
- Outcome
- Vesting order granted; property vested in applicant; leave to commence by originating application granted; Attorney-General substituted as respondent.
- Legal Topics
- Disclaimer, Vesting Order, Bankruptcy Discharge, Mortgage Priority, Standing
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Philip Watson
Applicant
Attorney-General for the Secretary of the Treasury
Respondent
Procedural Posture
Vesting Order Under S119 Insolvency Act 2006 / Decision on Originating Application (duty Judge)
Legal Issues
- 1 Whether a person who suffered loss from an Official Assignee's disclaimer may apply under s119 for vesting of disclaimed property after discharge from bankruptcy
- 2 Whether it is fair to vest the disclaimed property in the applicant
- 3 Effect of existing mortgage and third party consent on vesting
Ratio Decidendi
Mr Watson, as a person who suffered loss from the Official Assignee's disclaimer, was entitled to apply under s119; given the absence of opposition, the protection of the mortgagee's interest, and Mr Watson's intention to repay borrowings from sale proceeds, it was fair to vest the property in him and the Court therefore granted the vesting order.
Court Disposition
Vesting order granted; property vested in applicant; leave to commence by originating application granted; Attorney-General substituted as respondent.
Orders
- Mr Watson has leave to commence this proceeding by originating application.
- The Attorney-General, for the Secretary of the Treasury, substitutes for the Official Assignee as respondent.
Full Case Text
Judgment text and source record
1 paragraphs
WATSON v ATTORNEY-GENERAL FOR THE SECRETARY OF THE TREASURY [2021] NZHC 1596 [30June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-781[2021] NZHC 1596UNDER s 119 of the Insolvency Act 2006 and Part 19of the High Court Rules 2016IN THE MATTER of an application for a vesting order inrespect of land in the bankruptcy of AndrewPhilip WatsonBETWEEN ANDREW PHILIP WATSONApplicantAND ATTORNEY-GENERAL FOR THESECRETARY OF THE TREASURYRespondentDate of hearing: 30 June 2021Appearance: N W Taefi for the applicantDate of judgment: 30 June 2021JUDGMENT OF JAGOSE JThis judgment was delivered by me on 30 June 2021 at 4.30pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarCounsel/Solicitors:N W Taefi, Barrister, AucklandSnedden & Associates, AucklandCopy to:Crown Law, Wellington[1] As duty judge, I have Mr Watson's applications for leave to bring thisproceeding as an originating application, and for an order vesting property in him.[2] Mr Watson formerly was adjudicated bankrupt, from which he since has beendischarged. While bankrupt, the Official Assignee disclaimed as 'onerous' his interestin an apartment in Auckland's Mount Wellington, ownership of and all rights in thesame then passing to the Crown.1 The property is subject to a first ranking mortgagein favour of the ASB bank.[3] Mr Watson now seeks title to the property revests in him. The caveatorsconsent, as does Mr Watson's wife. ASB's interest is protected by its mortgage. Sincedischarge of Mr Watson's bankruptcy, the Official Assignee has no standing. Treasuryabides my decision.[4] The just, speedy, and inexpensive determination of this straightforward andunopposed proceeding means the interests of justice are in favour of itscommencement by originating application.2[5] Section 119 of the Insolvency Act 2006 enables a person suffering loss ordamage as a result of the Official Assignee's disclaimer to apply for an order thedisclaimed property be vested in that person.3 That includes the bankrupt.4 I am to besatisfied "it is fair" the property should be vested in the applicant.5 Coordinatedecisions of this Court hold "this assessment should be made in a holistic manner andin light of all the surrounding circumstances the Court considers relevant".6[6] Plainly Mr Watson is entitled to seek vesting, even if no longer the bankrupt,then as a person suffering loss by the Official Assignee's disclaimer. The most material1 Fish Man Ltd (in liq) v Hadfield [2017] NZCA 589, [2018] 2 NZLR 428 at [34], approving RuralBanking and Finance Corporation of New Zealand Ltd v Official Assignee [1991] 2 NZLR 351(HC) at 360.2 High Court Rules 2016, r 19.5.3 Insolvency Act 2006, s 119(1).4 Section 119(2).5 Section 119(3).6 Robinson v IAG New Zealand Ltd [2016] NZHC 3149 at [50]; Ravelich v Manning [2018] NZHC255 at [13]; Goldstone v Goldstone [2019] NZHC 1649 at [18].circumstance is he borrowed money to maintain the property, which he wishes to repayfrom the property's sale. No one resists. It is fair the property should be vested in him.[7] I therefore order:(a) Mr Watson has leave to commence this proceeding by originatingapplication;(b) the Attorney-General, for the Secretary of the Treasury, substitutes forthe Official Assignee as respondent; and(c) the property vests in Mr Watson.—Jagose J