SELLMAN v SLATER [2019] NZHC 1666

SELLMAN v SLATER [2019] NZHC 1666

The court exercised its discretion under s 76(2) Insolvency Act 2006 to allow the proceeding to continue against the bankrupt and held that continuation necessarily includes an order that the bankrupt must comply with existing court orders (discovery and oral examination). Bankruptcy does not absolve the bankrupt of...

Source-derived case information.

Citation
[2019] NZHC 1666
Parties
First Plaintiff: John Douglas Sellman; Second Plaintiff: Boyd Anthony Swinburn; Third Plaintiff: Shane Kawenata Frederick Bradbrook; First Defendant: Cameron John Slater; Second Defendant: Carrick Douglas Montrose Graham; Third Defendant: Facilitate Communications Limited; Fourth Defendant: Katherine Rich; Fifth Defendant: New Zealand Food and Grocery Council Inc
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 July 2019
Procedural Posture
Defamation / Interlocutory Application to Compel Discovery and Oral Examination; Contempt Hearing Scheduled
Outcome
Court confirmed continuation under s 76(2) and ordered that Mr Slater must comply with existing discovery and oral examination orders; directed timetable for filing medical evidence and notices and scheduled a hearing on contempt and compliance; declined further argument on the abstract legal effect of bankruptcy;...
Legal Topics
Discovery, Oral Examination (examination for Discovery), Continuation of Proceedings Under Insolvency, Litigation Guardian, Contempt of Court, Stay Applications, Default Judgment
Civil Defamation Insolvency/bankruptcy Civil Procedure Discovery Oral Examination (examination for Discovery) Continuation of Proceedings Under Insolvency Litigation Guardian +3 more

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Parties

John Douglas Sellman

First Plaintiff

Boyd Anthony Swinburn

Second Plaintiff

Shane Kawenata Frederick Bradbrook

Third Plaintiff

Cameron John Slater

First Defendant

Carrick Douglas Montrose Graham

Second Defendant

Facilitate Communications Limited

Third Defendant

Katherine Rich

Fourth Defendant

New Zealand Food and Grocery Council Inc

Fifth Defendant

Procedural Posture

Defamation / Interlocutory Application to Compel Discovery and Oral Examination; Contempt Hearing Scheduled

Legal Issues

  1. 1 Whether bankruptcy prevents a bankrupt from being required to comply personally with existing court orders
  2. 2 Whether the court may and should allow proceedings to continue against a bankrupt under s 76(2) Insolvency Act 2006 on terms requiring compliance
  3. 3 Whether the Official Assignee should be required to discharge discovery/oral examination obligations or the bankrupt must do so personally

Ratio Decidendi

The court exercised its discretion under s 76(2) Insolvency Act 2006 to allow the proceeding to continue against the bankrupt and held that continuation necessarily includes an order that the bankrupt must comply with existing court orders (discovery and oral examination). Bankruptcy does not absolve the bankrupt of compliance where the court permits continuation; if the Official Assignee can discharge obligations the Assignee should do so, otherwise the bankrupt must comply personally. Further argument on the abstract legal effect of bankruptcy was unnecessary to resolve the application and was declined.

Court Disposition

Court confirmed continuation under s 76(2) and ordered that Mr Slater must comply with existing discovery and oral examination orders; directed timetable for filing medical evidence and notices and scheduled a hearing on contempt and compliance; declined further argument on the abstract legal effect of bankruptcy;...

Orders

  • Continuation of proceeding against Mr Slater under Insolvency Act 2006 s 76(2) is confirmed and construed to include requirement that Mr Slater comply with prior court orders
  • Mr Slater must comply with the discovery order and personally attend for oral examination unless the Official Assignee can discharge those obligations through its powers