New Zealand Case Law: Decisions & Judgments

Topic

Disclaimer of property

Legal area

Court

16 Dec 2022

LINK TECHNOLOGY 2000 LIMTIED v MEMELINK [2022] NZHC 3506

Citation

[2022] NZHC 3506
Court

High Court

Applicant was not a person suffering loss or damage as required by s 119 or s 269 because he lacked a personal proprietary interest in the causes of action (shares were held by the Official Assignee, guarantee had not been called, patent claim lacked factual foundation), the underlying claim was weak and inadequately evidenced, delay and non‑compliance caused real prejudice, and it was not fair or just to vest the disclaimed litigation rights in the applicant; accordingly leave to appeal was refused.
23 Nov 2022

WETINI v THE OFFICIAL ASSIGNEE [2022] NZHC 3068

Citation

[2022] NZHC 3068
Court

High Court

The Court found it was fair under s 119(3) to vest the bankrupt's share in the applicant because she suffered loss from the disclaimer, had effectively maintained and increased the property's value, the mortgagee and Crown did not oppose vesting, and vesting was necessary to allow her to realise and deal with the property; vesting was ordered subject to repayment of $20,000 to the Official Assignee from sale proceeds to reimburse renovations and outgoings.
25 Sept 2022

RE MULLINS [2022] NZHC 2422

Citation

[2022] NZHC 2422
Court

High Court

The Court was satisfied the applicant suffered loss as a result of the disclaimer because she assumed sole responsibility for all outgoings and maintenance thereby picking up obligations relieved from the bankrupt; applying s119(3) the Court found it fair to vest the property in the applicant given lack of unfairness to other parties and absence of opposition, and accordingly made a vesting order under s119(1)(b).
31 Aug 2021

FAI MONEY LIMITED v VUJCICH [2021] NZHC 2267

Citation

[2021] NZHC 2267
Court

High Court

The Court found it fair under s119 to vest in FAI and the Trustee the sums they agreed and to vest $100,000 in the bankrupt (Mr Johnston); FAI's equitable security over the land and proceeds justified vesting; the Trustee's unregistered mortgage entitled it to $72,000; Mr McKenna's claim was dismissed for lack of evidentiary affidavit and failure to prove loss as a result of the disclaimer.
6 Jul 2021

An appeal against a decision of the High Court, on the application of Gary Owen Burgess [2021] NZCA 300 [6 July 2021]

Citation

[2021] NZCA 300
Court

Court of Appeal

The Court dismissed the appeal because the proposed causes of action were wholly untenable and had no prospect of success, and, applying s 119, it would not be fair to vest the disclaimed litigation rights in Mr Burgess given the merits, the delay, prejudice to proposed defendants and the need to preserve the integrity of the court process.
12 Jun 2019

BURGESS v THE OFFICIAL ASSIGNEE [2019] NZHC 1324 .

Citation

[2019] NZHC 1324
Court

High Court

The applicant lacked standing because his litigation rights had vested in the Official Assignee on adjudication and been extinguished under s101, the disclaimer did not detrimentally affect his monetary or other interests or the potential surplus of the estate, and a successful appeal would only reinstate the rights to the Assignee who would not be obliged to pursue them; therefore the appeal was struck out for want of standing.
26 Nov 2018

In the matter of BODY CORPORATE 447594 [2018] NZHC 3078

Citation

[2018] NZHC 3078
Court

High Court

Given the Official Assignee's disclaimer and the Crown holding beneficial ownership while substantial levies remain unpaid and are likely to increase, and because the Crown does not oppose vesting and the former owners have not opposed, it was appropriate to vest unit 159 in Body Corporate 447594 under s119 so the body corporate can sell the unit and apply the proceeds to outstanding levies; orders were to lie in Court until 21 January 2019 to allow any opposition to be filed.
3 May 2018

Application for vesting order N M ROEBUCK [2018] NZHC 917

Citation

[2018] NZHC 917
Court

High Court

Where property vested in the Crown following an Official Assignee disclaimer and all affected parties either consent or do not oppose, the Court will exercise its power under s119(2) of the Insolvency Act 2006 to grant a vesting order and may dispense with service to enable transfer to the applicant to facilitate sale and maximise returns.
27 Feb 2018

RAVELICH v MANNING [2018] NZHC 255

Citation

[2018] NZHC 255
Court

High Court

Dismissal because vesting would be futile: any claim the applicant could bring would be time‑barred under Limitation Act 2010 s11/s12, and vesting would be unfair to respondent since counterclaims were extinguished on the applicant's discharge from bankruptcy (Insolvency Act s304(1)).
5 May 2017

RE HANARA EX PARTE THE OFFICIAL ASSIGNEE [2017] NZHC 902

Citation

[2017] NZHC 902
Court

High Court

The Official Assignee had standing under s 119 to apply in a representative capacity for the creditors of both bankrupt estates; the Assignee of Mrs Hanara had not suffered loss from the disclaimer because there was no equity at the time of disclaimer, but the Assignee representing Mr Hanara's creditors had suffered loss because the disclaimer rendered his half-share effectively unsaleable and risked a mortgagee sale producing no dividend; it was fair under s 119(3) to vest the disclaimed one half interest of Jessica Hanara in the Official Assignee as Assignee of Dimitrious Hanara to enable a…