PALMER AND MENZIES V THE OFFICIAL ASSIGNEE HC AK CIV-2005-404-3288

PALMER AND MENZIES V THE OFFICIAL ASSIGNEE HC AK CIV-2005-404-3288

The Assignee has statutory power to issue a s58 notice after the bankrupt's discharge because s42 is not exhaustive of property available to creditors and ss54-58 together with Property Law Act s60 create recoverable categories separate from s42 property; the Assignee's powers continue until released and are subject to ordinary limitation rules measured from adjudication, so a post-discharge s58 notice issued within the limitation period is valid. The PRA does not prevent High Court determination of relationship-property issues arising in s58 proceedings.

Citation
openlaw-87cb976a_2d84_4cd3_981e_71309f44215b.pdf
Parties
Trustee / Applicant / Defendant: Simon Middleton Palmer; Trustee / Applicant / Defendant / Personal Litigant: Annie Catherine Menzies; Respondent / Plaintiff: The Official Assignee; Bankrupt / Subject of Proceedings: Keith James Bainbridge
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 November 2010
Procedural Posture
Insolvency / Bankruptcy Proceedings / Preliminary S86 Challenge to Jurisdiction; High Court Judgment on Preliminary Issues
Outcome
Trustees' jurisdictional challenge dismissed; Assignee entitled to issue post-discharge s58 notice; application to strike out amended statement of claim dismissed; other challenges remain for substantive hearing; costs reserved
Legal Topics
Voidable Transactions, Assignee Powers, S58 Notice, Discharge From Bankruptcy, Limitation Periods, Relationship Property Jurisdiction
Insolvency Law Bankruptcy Law Property Law Civil Procedure Voidable Transactions Assignee Powers S58 Notice Discharge From Bankruptcy +2 more

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Parties

Simon Middleton Palmer

Trustee / Applicant / Defendant

Annie Catherine Menzies

Trustee / Applicant / Defendant / Personal Litigant

The Official Assignee

Respondent / Plaintiff

Keith James Bainbridge

Bankrupt / Subject of Proceedings

Procedural Posture

Insolvency / Bankruptcy Proceedings / Preliminary S86 Challenge to Jurisdiction; High Court Judgment on Preliminary Issues

Legal Issues

  1. 1 Whether the Official Assignee has power to issue a s58 Insolvency Act 1967 notice after the bankrupt's discharge
  2. 2 Whether property set aside under ss54-58/Property Law Act s60 must be revested in the bankrupt before discharge to be available to the Assignee
  3. 3 Whether challenges under the Property (Relationships) Act must be commenced in the Family Court

Ratio Decidendi

The Assignee has statutory power to issue a s58 notice after the bankrupt's discharge because s42 is not exhaustive of property available to creditors and ss54-58 together with Property Law Act s60 create recoverable categories separate from s42 property; the Assignee's powers continue until released and are subject to ordinary limitation rules measured from adjudication, so a post-discharge s58 notice issued within the limitation period is valid. The PRA does not prevent High Court determination of relationship-property issues arising in s58 proceedings.

Court Disposition

Trustees' jurisdictional challenge dismissed; Assignee entitled to issue post-discharge s58 notice; application to strike out amended statement of claim dismissed; other challenges remain for substantive hearing; costs reserved

Orders

  • Application by trustees in CIV-2005-404-3288 para 1(a) to strike out the second disposition notice on jurisdictional grounds dismissed
  • Alternative application in para 1(b) of trustees' application dated 1 September 2010 remains for determination