OFFICIAL ASIGNEE OF SAMOA v TAPUSOA [2020] NZHC 1928

OFFICIAL ASIGNEE OF SAMOA v TAPUSOA [2020] NZHC 1928 [4 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-002424[2020] NZHC 1928UNDER Joint Family Homes Act 1964BETWEEN OFFICIAL ASIGNEE OF SAMOAApplicantAND VAINUU TAPUSOARespondentHearing: 8 July 2020Appearances: Mansi Rathod for the ApplicantNo appearance for the RespondentJudgment: 4 August 2020JUDGMENT OF MOORE J[On formal proof]This judgment was delivered by me on 4 August 2020 at 12:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Mr Tapusoa, the respondent, was adjudicated bankrupt in Samoa in 2006. On29 May 2015, the applicant, the Official Assignee of Samoa ("the Official Assignee")was appointed to administer the respondent's bankrupt estate.[2] On 10 June 2019, Wylie J ordered that the bankruptcy proceedings berecognised as a foreign main proceeding and the applicant be recognised as the foreignrepresentative for the purposes of the Insolvency (Cross-border) Act 2006. On thatbasis, the Official Assignee may administer the respondent's property in New Zealand.[3] Mr Tapusoa's sole remaining asset is the property at 58 Ambury Road,Mangere Bridge, Auckland ("the property"). It was registered as a joint family homeunder the Joint Family Homes Act 1964 ("the Act") on 10 October 1975 byMr Tapusoa and his wife. Mrs Tapusoa has since died. Mr Tapusoa does not live atthe property. He lives in Samoa. Since 2015, he has been subject to a DepartureProhibition Order which is renewed every six months. This prevents him from leavingSamoa.[4] The Official Assignee seeks judgment by way of formal proof cancelling thesettlement of the property as a joint family home so that it may be sold andMr Tapusoa's creditors repaid with the proceeds. Mr Tapusoa was served with theapplication and associated documents on 15 April 2020. He has not responded in anyway.[5] In the alternative, the Official Assignee applies to direct the Registrar tomortgage or sell the property and repay creditors with the proceeds.Application[6] When a property is settled as a joint family home, the husband and wife becomeits legal and beneficial owners. The property is protected against creditors.1 On thedeath of one, the settled property becomes the property of the survivor. The1 Joint Family Homes Act 1964, s 9(2)(d).registration of the settlement as a joint family home may be cancelled by the Registrarin accordance with s 10 of the Act.[7] Ms Rathod, on behalf of the Official Assignee, has identified two paths unders 10 that would permit cancellation in this case. The first is under s 10(1)(e) whichallows cancellation of a property where:" neither the husband or wife resides; or where [the property] has ceasedto be used exclusively or principally as a home for the husband and wife oreither of them and for such of the members of their, his, or her household (ifany) as for the time being reside in the flat or dwellinghouse "[8] In Faumuina v Registrar-General of Lands, it was emphasised that the "socialcontract" in the Act contemplates continued residence in the settled property as afamily home.2 The property is clearly no longer a family home because Mrs Tapusoahas died and Mr Tapusoa has resided in Samoa for some years. The s 10(1)(e) criteriaare plainly met.[9] The second option advanced by Ms Rathod is under s 10(1)(d) which permitsthe Court to order cancellation if a direction is given under s 16. The relevant parts ofs 16 provide:"(1) Subject to the provisions of this section, the High Court, on anapplication in respect of any settled property made by any creditor orassignee in bankruptcy who may benefit in consequence, and afternotice has been given to the owner or owners of the settled property,may—(a) direct the cancellation of the settlement as to any part of thesettled property which is not essential in connection with thedwellinghouse or flat in which the owner or owners thereofreside and have their home:provided that no such direction shall be given without theconsent of the owner or owners of the settled property if theeffect of the cancellation will be to reduce to the specified sumor less the net value of the property which remains settled asthat value is determined under section 20:(b) direct a mortgage or sale of the whole of the settled propertyand a distribution of the money borrowed or of the proceedsof sale in accordance with section 17 2 Faumuina v Registrar-General of Lands DC Wellington CIV-2008-085-327, 30 October 2008.(2) No application to the High Court under subsection (1) shall be made,unless—(a) the said net value of the settled property exceeds the specifiedsum at the date of the application; or"[10] In my view the s 16 route is inapplicable. The part of s 16 relating tocancellation (s 16(1)(a), referred to by Ms Rathod in her oral submissions) refers onlyto cancellation of the settlement of part of a property. Part cancellation is notcontemplated by the Official Assignee. On the other hand, s 16(1)(b), which wasdiscussed as an option by Ms Rathod in her written submissions, empowers me todirect a mortgage or sale of the whole of the settled property. That was sought byMs Rathod only as an alternative.[11] Nevertheless, the settlement of the property as a joint family home may becancelled under s 10(1)(e).[12] This requires the Registrar to follow the notification process detailed at s 10(3).If the respondent has not acted to dispute this matter after 28 days,3 the Registrar shalleffect cancellation by causing a memorial of cancellation to be entered in the registeragainst the property's title.4Orders[13] I order that the Registrar commence the notification process as set out ats 10(3). If there is no response from the respondent within the specified time, I directthat the Registrar effect cancellation of the settlement of the property as a joint familyhome.[14] Given there was no contradictor and the Registrar was not represented at thehearing, leave is reserved to the Official Assignee and/or the Registrar to apply forsuch further or other directions as may be necessary to give effect to the purpose ofthese orders.3 The process for doing so is set out at Joint Family Homes Act 1964, s 10(5).4 Section 10(6).Costs[15] I award costs to the applicant against the respondent calculated on a 2B basis.The applicant may file a memorandum itemising costs and disbursements.Moore JSolicitors:Craig Griffin & Lord, AucklandCopy to:The Respondent