WHITFIELD AND VAN DELDEN AS RECEIVERS OF THE BOWDEN NO 14 TRUST V WESTPAC BANKING CORPORATION AND ANOR HC AK CIV 2008-404-5672

WHITFIELD AND VAN DELDEN AS RECEIVERS OF THE BOWDEN NO 14 TRUST V WESTPAC BANKING CORPORATION AND ANOR HC AK CIV 2008-404-5672

The Act and Proposal Order unequivocally transferred designated assets and liabilities from WBC to WNZL (ss 8 and 9) and s13 preserves and permits continuation of claims by or against the successor in its own name; accordingly WBC ceased to be liable as from 1 November 2006 and must be struck out as a defendant, the claim to be pursued against WNZL.

Citation
openlaw-8d6dcc63_8e35_4a93_9558_d7999b85a383.pdf
Parties
Plaintiffs: John Trevor Whitfield and Boris Van Delden as receivers of the Bowden No 14 Trust; First Defendant: Westpac Banking Corporation; Second Defendant: Westpac New Zealand Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 March 2009
Procedural Posture
Commercial List Proceeding for Breach of Contractual Mandate and Knowing Assistance (trust) / Interlocutory Strike Out Application and Decision
Outcome
First Defendant Westpac Banking Corporation struck out as a defendant; proceedings to continue against Westpac New Zealand Ltd
Legal Topics
Transfer of Liabilities, Vesting of Assets, Successor Liability, Strike Out, Knowing Assistance, Breach of Trust, Customer‑banker Relationship
Banking Law Statutory Interpretation Contract Law Equity Trusts Procedural Law Transfer of Liabilities Vesting of Assets +5 more

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Parties

John Trevor Whitfield and Boris Van Delden as receivers of the Bowden No 14 Trust

Plaintiffs

Westpac Banking Corporation

First Defendant

Westpac New Zealand Ltd

Second Defendant

Procedural Posture

Commercial List Proceeding for Breach of Contractual Mandate and Knowing Assistance (trust) / Interlocutory Strike Out Application and Decision

Legal Issues

  1. 1 Whether the Westpac New Zealand Act 2006 and the Westpac New Zealand Proposal Order 2006 effect a statutory transfer of liabilities from WBC to WNZL that precludes proceedings against WBC
  2. 2 Whether equitable liabilities or in personam obligations (eg knowing assistance) can remain enforceable against the transferor after statutory vesting
  3. 3 Whether the receivers' claim constituted a 'designated liability' and existing claim for purposes of s13 such that it must be pursued against WNZL

Ratio Decidendi

The Act and Proposal Order unequivocally transferred designated assets and liabilities from WBC to WNZL (ss 8 and 9) and s13 preserves and permits continuation of claims by or against the successor in its own name; accordingly WBC ceased to be liable as from 1 November 2006 and must be struck out as a defendant, the claim to be pursued against WNZL.

Court Disposition

First Defendant Westpac Banking Corporation struck out as a defendant; proceedings to continue against Westpac New Zealand Ltd

Orders

  • Strike out Westpac Banking Corporation as a defendant in this proceeding
  • Westpac Banking Corporation awarded costs assessed as category 2B