DE ALWIS & ORS V LUVIT FOODS INTERNATIONAL & ANOR HC AK CIV-2002-404-001944

DE ALWIS & ORS V LUVIT FOODS INTERNATIONAL & ANOR HC AK CIV-2002-404-001944

The Court held that the second defendant (bankrupt) lacked standing because the right to challenge or set aside the judgment vested in the Official Assignee under the Insolvency Act 1967; the deputy assignee's informal letter did not confer or effect abandonment of that right. Conversely, the non-party applicant...

Source-derived case information.

Citation
openlaw-8064a7fa_eb1f_4db9_b363_6a7f2c7a5c50.pdf
Parties
First Plaintiff: Herald Victor De Alwis; Second Plaintiff: M E & H V De Alwis; Third Plaintiff: John Wah Kum; Fourth Plaintiff: Connie Fay Ling Lum; Fifth Plaintiff: Marsha Adrienne Tai Ping Tan; Sixth Plaintiff: Peter Thutt Pitt Wee; Seventh Plaintiff: Paul Seng Poh Koor; First Defendant: Luvit Foods International; Second Defendant: Chean Fook Seong aka James Chean; Non Party Applicant (wife of Second Defendant): Ai Nee Chean
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 March 2010
Procedural Posture
Civil (set Aside Judgment; Insolvency) / Application to Set Aside Judgment Limited to Standing/joinder Issues
Outcome
Second defendant's application dismissed for want of standing; non-party applicant (wife) has standing and her application granted; Official Assignee ordered to be joined; substantive hearing to be allocated; costs reserved.
Legal Topics
Standing, Vesting of Rights in Official Assignee, S32 Insolvency Act 1967, Set Aside Judgment, After Acquired Property, Disclaimer and Abandonment, Non Party Relief, Res Judicata
Insolvency Law Civil Procedure Securities Law Consumer Protection (fair Trading) Standing Vesting of Rights in Official Assignee S32 Insolvency Act 1967 Set Aside Judgment +4 more

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Parties

Herald Victor De Alwis

First Plaintiff

M E & H V De Alwis

Second Plaintiff

John Wah Kum

Third Plaintiff

Connie Fay Ling Lum

Fourth Plaintiff

Marsha Adrienne Tai Ping Tan

Fifth Plaintiff

Peter Thutt Pitt Wee

Sixth Plaintiff

Paul Seng Poh Koor

Seventh Plaintiff

Luvit Foods International

First Defendant

Chean Fook Seong aka James Chean

Second Defendant

Ai Nee Chean

Non Party Applicant (wife of Second Defendant)

Procedural Posture

Civil (set Aside Judgment; Insolvency) / Application to Set Aside Judgment Limited to Standing/joinder Issues

Legal Issues

  1. 1 Whether an undischarged bankrupt (second defendant) has standing to apply to set aside a judgment obtained after adjudication
  2. 2 Whether the right to challenge or set aside a judgment vests in the Official Assignee under the Insolvency Act 1967
  3. 3 Whether the Official Assignee consented to or abandoned the right to challenge the judgment

Ratio Decidendi

The Court held that the second defendant (bankrupt) lacked standing because the right to challenge or set aside the judgment vested in the Official Assignee under the Insolvency Act 1967; the deputy assignee's informal letter did not confer or effect abandonment of that right. Conversely, the non-party applicant (wife) had standing because she was demonstrably affected by the judgment (summary judgment against her relied on findings in the impugned judgment) and therefore may apply to set it aside. The second defendant's application was dismissed and the non-party applicant's application granted with the Official Assignee to be joined.

Court Disposition

Second defendant's application dismissed for want of standing; non-party applicant (wife) has standing and her application granted; Official Assignee ordered to be joined; substantive hearing to be allocated; costs reserved.

Orders

  • Second defendant Chean's application to set aside the judgment is dismissed
  • Non-party applicant Ai Nee Chean's application is granted and a date for the substantive application is to be allocated