MUSSON V MINISTRY OF FISHERIES HC INV CIV 2011-425-000043

MUSSON V MINISTRY OF FISHERIES HC INV CIV 2011-425-000043 [22 March 2012]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCIV 2011-425-000043[2012] NZHC 515BETWEEN ANTHONY PHILLIP MUSSONAppellantAND MINISTRY OF FISHERIESRespondentHearing: (On Papers)Counsel: A P Musson (In Person)S K Barr for RespondentJudgment: 22 March 2012JUDGMENT OF WHATA J[1] The Ministry of Fisheries have obtained judgment in the District Court against Mr Musson in the sum of $4,502.18. Mr Musson appealed that judgment. Mr Musson failed to comply with a direction that he identify relevant grounds of appeal. On that basis Lang J concluded that Mr Musson had no relevant grounds of appeal in respect of that judgment and the appeal was dismissed.1[2] Mr Musson now seeks leave to appeal that judgment out of time. A preliminary issue has arisen as to Mr Musson's standing to seek leave to appeal. Iwas advised at a telephone conference that Mr Musson had in fact been adjudicated bankrupt. I sought memoranda from the parties setting out the background to the application and in relation to any bankruptcy of Mr Musson. The respondent has helpfully provided a detailed memorandum setting out a chronology of the pleadings, copies of judgments and also advising that the applicant was adjudicated bankrupt in the High Court at Invercargill on 23 November 2011.1 Musson v Ministry of Fisheries HC Invercargill CIV 2011-425-000043, 6 April 2011[3] As the respondent submits, the applicant as a bankrupt, has no standing to challenge the judgment debt in his own name without the consent of the Official Assignee. Section 101 of the Insolvency Act 2006 provides:101 Status of bankrupt's property on adjudication(1) On adjudication, -(a) all property (whether in or outside New Zealand) belonging to the bankrupt or vested in the bankrupt vests in the Assignee without the Assignee having to intervene or take any other step in relation to the property, and any rights of the bankrupt in the property are extinguished; and(b) the powers that the bankrupt could have exercised in, over, or in respect of any property (whether in or outside New Zealand) for the bankrupt's own benefit vest in the Assignee.(2) This section is subject to section 104.[4] The applicant has not provided any information that might assist me in this regard. There is certainly no evidence of approval given by the Official Assignee to the continuance of these proceedings.[5] I can, accordingly, deal with the application for leave succinctly. As the Court of Appeal stated in Shirley-Anne Carver and Ors v Neil Clarence Jack and Anor2, the absence of the Official Assignee's consent to continue with the appeal is aground upon which an application for leave can be refused.[6] I should also add, having regard to the background to this matter and inparticular Lang J's judgment, I find it difficult to see that any appeal has anyprospect of success. Mr Musson failed to set out proper grounds for his appeal to this Court. It would be an abuse of process, in my view, to now afford Mr Musson a further appeal right, even if he was now prepared to set out those grounds. He was afforded an adequate opportunity to make his case in this Court and failed to do so.2 Shirley-Anne Carver and Ors v Neil Clarence Jack and Anor [2010] NZCA 184[7] On that basis, application for leave to appeal is declined.Whata JSolicitors::Luke Cunningham & Clere, Wellington, for RespondentCopy to:A P Musson, 8 Thule Road, Stewart Island