OFFICIAL ASSIGNEE V D S HEENAN HC INV CIV-2002-425-000015

OFFICIAL ASSIGNEE V D S HEENAN HC INV CIV-2002-425-000015 20 December 2006IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CIV-2002-425-000015BETWEEN THE OFFICIAL ASSIGNEE Plaintiff AND DAVID STANLEY HEENAN Defendant Telephone Conference: 12 December 2006 Counsel: J G French for Plaintiff No Appearance for Mr Heenan Judgment: 20 December 2006JUDGMENT OF PANCKHURST J Judgment on formal proof[1] The Official Assignee seeks judgment against Mr Heenan on the basis of formal proof evidence provided in the form of affidavits. The proceeding has an extensive history. Originally Mr Heenan filed a defence, ostensibly on behalf of the Heenan Family Trust 1960. However, the statement of defence was struck out by Chisholm J on 31 October 2003. [2] I have considered the application and the supporting affidavits and concluded that it is appropriate to proceed on a formal proof basis. I am also satisfied that the evidence provided by affidavit is sufficient and supportive of the relief claimed.The facts of the matter[3] Mr Heenan was adjudicated bankrupt in December 2000 in the High Court in Invercargill. Subsequently, in March 2001 the Official Assignee ascertained that Mr Heenan owned a 1939 Buick convertible motorcar, registration plate "IBUICK", and also another late 1930s model Buick car in a disassembled state. [4] Both were uplifted by the Official Assignee and taken to Todds Car Auction at Invercargill, for sale. There was to be an auction in April 2001. Very shortly before the auction date Mr Heenan asserted that the cars were owned by the Heenan Family Trust 1960, rather than by him, so that they did not comprise part of the bankrupt estate. This assertion resulted in the cars being withdrawn from auction. [5] The following day, on account of a misunderstanding, Todds Car Auctions permitted Mr Heenan to uplift the two cars, when in fact his claim that they were owned by the Trust was unverified and in dispute. [6] In due course the Official Assignee obtained an interim injunction on 9 May 2002 which required Mr Heenan to deliver the cars back into the possession of the Official Assignee. Mr Heenan refused to do so. He was then imprisoned for contempt of court. [7] Despite this the missing vehicles were not surrendered into the possession of the Official Assignee. However, in late 2003 the Registrar at Invercargill recovered the parts comprising the dismantled Buick. The complete car has still not been recovered. Mr Heenan continues in his refusal to disclose its whereabouts.The relief sought[8] The Official Assignee seeks judgment as follows: [a] a declaration that the bankrupt estate is the true owner of the 1939 Buick convertible motorcar, registration plate IBUICK,[b] a declaration that the bankrupt estate is the true owner of the dismantled Buick motorcar comprising body, chassis and other parts, [c] an order that the defendant deliver up to the plaintiff within such time and upon such terms as the Court may fix, the 1939 Buick convertible, registration plate IBUICK, [d] an order restraining the defendant from selling or disposing of the 1939 Buick convertible, registration plate IBUICK, and [e] an order that the defendant pay the plaintiff's costs of these proceedings. [9] In support of the application for judgment a number of affidavits have been filed. These are from R J Cain, C A Wason and K F Barclay. I shall not refer to the contents of the various affidavits. They describe the history of the matter, as I have already recounted it, although in rather more detail. [10] To my mind the only contentious issue is that of ownership of the two Buicks as at 11 December 2000, the date of adjudication. If it is established that Mr Heenan personally owned the vehicles, then the relief sought is appropriate and judgment must follow.Ownership of the Buicks as at adjudication[11] Although all the surrounding circumstances indicated that Mr Heenan personally owned the Buicks as at November 2000, he asserted otherwise shortly before they were to be sold at auction. Is there any substance to the claim that the Heenan Family Trust 1960 is the true owner? [12] The affidavit evidence includes reference to a decision of Judge MacAskill given in the District Court at Alexandra (NP 7/02) dated 4 February 2003. The Heenan Family Trust 1960 was one of two plaintiffs in the relevant proceeding. At issue was whether there was a legally recognisable plaintiff before the Court, which in turn depended on whether the existence of the 1960 Trust was properlyestablished. In an earlier minute dated 6 August 2002 Judge MacAskill gave reasons why he doubted that the handwritten deed provided by Mr Heenan was genuine. A further opportunity was extended to provide better evidence to verify the existence of the Trust. Such was not forthcoming. Hence, Judge MacAskill concluded that the existence of the 1960 Trust was not established, which, in part, prompted his decision to strike out the relevant statement of claim. [13] I see no reason to differ from the conclusions reached in the Alexandra proceeding. I shall not rehearse the factors which cast doubt upon the genuineness of the handwritten Trust Deed, but in my view they were compelling. Mr Heenan's subsequent failure to respond to the Judge's minute and provide proper evidence of the Trust's existence, speaks for itself. [14] But even if there is a 1960 Trust, it remains to ask whether there is evidence to establish it was the owner of the Buicks as at the date of adjudication? Until very shortly prior to the auction everything pointed to Mr Heenan being the lawful owner of the vehicles. Then, he asserted otherwise and the vehicles were withdrawn from auction. [15] But, on balance, I am satisfied that Mr Heenan was the owner of the vehicles when he was adjudicated bankrupt. About the only indication to the contrary is a Certificate of Registered Ownership of a Motor Vehicle issued by the Transport Registry Centre on 23 April 2001. This certificate records that the 1939 Buick convertible, bearing registration plate IBUICK, was acquired by the owner in August 1992, the registered owner being:DAVID STANLEY HEENAN 11 BRUNSWICK STREET QUEENSTOWNBeneath this description of the registered owner appears:Preferred/Trading Name : HEENAN FAMILY TRUST[16] Does this document lend substance to Mr Heenan's claim that the Heenan Family Trust 1960 owned the vehicles, or at least the one registered IBUICK? I donot think so. The certificate impresses me as a very curious document. It records Mr Heenan to be the registered owner. What is to be made of the reference to a "preferred trading name", I do not know. In any event, the Trust is identified as the Heenan Family Trust, whereas the two trusts of that name are said to be distinguished by the addition of the description "1960" in one case, and "No. 2" in the other. [17] I regard the date of the certificate as highly significant. It was issued on 23 April 2001, at about the very time of the intended auction to be conducted by Todds Car Auctions of Invercargill. In my view the only sensible inference is that the certificate was obtained in an endeavour to lend substance to the claim that a Trust, rather than Mr Heenan personally, owned both the vehicles which were about to be sold. [18] I am satisfied on the basis of the affidavit evidence that Mr Heenan, in person, was the owner of the two vehicles at the relevant time. There is no evidence to establish the existence of the 1960 Trust, let alone that it owned the subject vehicles.Judgment[19] The Official Assignee is entitled to judgment in the terms sought. With reference to delivery up of the Buick convertible IBUICK, I direct that delivery is to be effected "forthwith". Costs are awarded on a 2B basis._________________________________________________________________________________ Solicitors: French Burt Partners, Invercargill for Plaintiff Defendant – Mr D S Heenan, 11 Brunswick Street, Queenstown