GRANT AND DRENNAN V OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF SUSAN SPENCER HC AK CIV-2010-404-004114

GRANT AND DRENNAN V OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF SUSAN SPENCER HC AK CIV-2010-404-004114

The court found the statutory prerequisites under the Property Law Act 2007 were satisfied (dispositions occurred after 31 December 2007, the debtor was insolvent at the time, and dispositions were made with intent to prejudice creditors) and therefore granted relief under s 348(2): Lindsay Crescent was vested in the Assignee free of the specified mortgages, the memorials were ordered cancelled, the interests under the Honk Farms and TG Nominees mortgages over Gladstone Road were vested in Honk Apartments (In Liquidation) and cancelled from the register, the court ordered sale of Gladstone Road under liquidators' control with a specified priority of distributions, and awarded actual and...

Citation
openlaw-fc301744_6420_481d_b1f0_7642ec80f17a.pdf
Parties
Applicants / Liquidators of Honk Apartments Limited (in Liquidation): Damian Grant and Peter Drennan; Respondent / Applicant in Related Proceeding: Official Assignee in Bankruptcy of the Property of Susan Spencer; Second Applicant in CIV 2010 404 006629: Official Assignee in Bankruptcy of the Property of Kim Spencer; Second Respondent in CIV 2010 404 006629: Honk Apartments Limited (In Liquidation); Interested Party / Alleged Related Creditor: Honk Farms Limited; Interested Party / Alleged Related Creditor: TG Nominees Limited; Mortgagee / Interested Creditor: Westpac New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 November 2010
Procedural Posture
Companies Act 1993; Property Law Act 2007 (applications Under Part 6 Sub‑part 6) / Continued Hearing on Applications for Directions and Relief Under S 348(2) Property Law Act 2007 and Joinder/procedural Orders
Outcome
Assignee's applications granted in part and liquidators' directions granted; orders made under s 348(2) Property Law Act 2007 vesting Lindsay Crescent in the Assignee free of specified mortgages, vesting and cancelling of Honk Farms/TG Nominees interests over Gladstone Road to the liquidator, directions for sale and...
Legal Topics
Setting Aside Dispositions, Asset Preservation Orders, Vesting of Property in Assignee, Cancellation of Land Memorials, Mortgage Priorities and Sale of Property, Costs
Insolvency Bankruptcy Property Law Companies Law Civil Procedure Setting Aside Dispositions Asset Preservation Orders Vesting of Property in Assignee +3 more

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Parties

Damian Grant and Peter Drennan

Applicants / Liquidators of Honk Apartments Limited (in Liquidation)

Official Assignee in Bankruptcy of the Property of Susan Spencer

Respondent / Applicant in Related Proceeding

Official Assignee in Bankruptcy of the Property of Kim Spencer

Second Applicant in CIV 2010 404 006629

Honk Apartments Limited (In Liquidation)

Second Respondent in CIV 2010 404 006629

Honk Farms Limited

Interested Party / Alleged Related Creditor

TG Nominees Limited

Interested Party / Alleged Related Creditor

Westpac New Zealand Limited

Mortgagee / Interested Creditor

Procedural Posture

Companies Act 1993; Property Law Act 2007 (applications Under Part 6 Sub‑part 6) / Continued Hearing on Applications for Directions and Relief Under S 348(2) Property Law Act 2007 and Joinder/procedural Orders

Legal Issues

  1. 1 Whether dispositions and mortgages granted by Ms Spencer after 31 December 2007 can be set aside under the Property Law Act 2007 as made with intent to prejudice creditors
  2. 2 Whether property should vest in the Assignee free of specified mortgages
  3. 3 Whether mortgages granted in favour of associated companies should be cancelled and interests vested in liquidator

Ratio Decidendi

The court found the statutory prerequisites under the Property Law Act 2007 were satisfied (dispositions occurred after 31 December 2007, the debtor was insolvent at the time, and dispositions were made with intent to prejudice creditors) and therefore granted relief under s 348(2): Lindsay Crescent was vested in the Assignee free of the specified mortgages, the memorials were ordered cancelled, the interests under the Honk Farms and TG Nominees mortgages over Gladstone Road were vested in Honk Apartments (In Liquidation) and cancelled from the register, the court ordered sale of Gladstone Road under liquidators' control with a specified priority of distributions, and awarded actual and...

Court Disposition

Assignee's applications granted in part and liquidators' directions granted; orders made under s 348(2) Property Law Act 2007 vesting Lindsay Crescent in the Assignee free of specified mortgages, vesting and cancelling of Honk Farms/TG Nominees interests over Gladstone Road to the liquidator, directions for sale and...

Orders

  • Join Official Assignee in Bankruptcy of the Property of Kim Spencer as second applicant in CIV-2010-404-006629 and Honk Apartments Limited (In Liquidation) as second respondent in CIV-2010-404-006629
  • Order under Companies Act 1993 s 248(1)(c) enabling proceedings to be continued by the Assignees as set out in the amended notice of originating application dated 10 November 2010