Estate of Waller

[2025] NZHC 155

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-136

[2025] NZHC 155

UNDER

Part 19 of the High Court Rules 2016

IN THE MATTER

of Part 6 of the Insolvency Act 2006

AND

IN THE MATTER

of an application by the Commissioner of Inland Revenue for an order appointing the Official Assignee as administrator of the

insolvent estate of KEITH ALEXANDER WALLER

THE COMMISSIONER OF INLAND REVENUE

Applicant

Hearing:	On the papers
Counsel:	D J Tasker for Applicant
Judgment:	13 February 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 13 February 2025 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RE ESTATE OF KEITH WALLER [2025] NZHC 155 [13 February 2025]

[1]        There is before the Court an application by the Commissioner of Inland Revenue seeking orders:

(a)for leave to commence this proceeding by originating application;

(b)for directions as to service;

(c)that the Official Assignee be appointed to administer the estate of Keith Alexander Waller, deceased; and

(d)that the applicant’s costs and disbursements of and incidental to the application be paid out of the deceased’s estate.

Background

[2]        Keith Alexander Waller died on 2 December 2020. At the time of his death his partner was Siobhan Matich.

[3]        Mr Waller died owing the Commissioner over $1 million for unpaid taxes. I understand that Ms Matich paid various expenses in respect to Mr Waller’s funeral and burial.

[4]        Mr Waller owned a property at 15 Akeake Crescent, Karikari Peninsula valued at approximately $100,000. Ms Matich has paid rates in respect of that property.

[5]        Mr Waller’s estate appears to be grossly insolvent. No application has been made by Ms Matich or anyone else to administer the estate. Ms Matich has confirmed that she would consent to an application by the Commissioner that the Official Assignee be appointed to administer Mr Waller’s estate under pt 6 of the Insolvency Act 2006.

[6]        The Commissioner feels it has no option but to attempt to expedite matters and apply for the Official Assignee to be appointed as the administrator. The Akeake Crescent property needs to be sold to reimburse Ms Matich for the expenses she has

paid on behalf of the estate and any other claims, and to recover at least some of what is owing to the Commissioner in respect of Mr Waller’s tax liability.

[7]        This is not an application which may be commenced under pt 19 of the High Court Rules 2016 by way of originating application as of right. However, under r 19.5 the Court may, in the interests of justice, permit such proceeding to be commenced by originating application. The interests of justice means the Court must secure the just, expedient and inexpensive determination of the proceedings when considering an application under r 19.5.1 The Court’s permission may be sought without notice, as has occurred in this case. It is clearly in the interests of justice that this application be commenced by way of originating application in circumstances where:

(a)the proceeding concerns the application of statutory provisions;

(b)there is no need for particularised pleadings;

(c)the issues are quite clear and not in dispute;

(d)the only person other than the applicant who has any real interest in the application consents to it; and

(e)there is no significant uncertainty as to the facts upon which the application will turn.

[8]        I therefore grant permission for the proceeding to be commenced by originating application.

[9]        Part 6 of the Insolvency Act deals with administration of insolvent deceased estates. Under s 381 a creditor may apply to the Court for an order under pt 6 if the creditor’s debt has reached the threshold for a creditor’s application for adjudication and more than four months have passed since the death of the deceased with no administrator having been appointed and no application having been filed in the Court under s 380.

1      Solar Bright Ltd v Martin [2019] NZHC 300 at [18].

[10]      Section 382 provides that an application by a creditor under s 381 must be served on the person specified by the Court where there is no administrator acting for the estate. In this case the only person who would be served with the application is Ms Matich, who consents to the application.

[11]      The Commissioner does not propose to serve the Official Assignee because it says the Official Assignee is the logical party to administer the estate, and the Official Assignee would not be served in bankruptcy or liquidation proceedings where it is to be appointed by the Court. I agree with that submission. I note also that s 385 allows the Court to appoint the Official Assignee to administer an estate if it thinks the estate is likely to be better administered by the Official Assignee than by the person who is, or may become, the administrator.

[12]Accordingly, I dispense with service in this proceeding.

[13]      In terms of the merits, this is clearly a case where it is appropriate for the Official Assignee to be appointed to administer Mr Waller’s estate. I am satisfied the order should be made because:

(a)Mr Waller died four years ago;

(b)the estate is insolvent;

(c)no one else is going to administer the estate;

(d)Ms Matich consents to the application; and

(e)it is in the public interest that the affairs of Mr Waller be administered and finalised, his funeral and other costs be reimbursed to Ms Matich and, to the extent possible, for the Commissioner to recover taxes owed by Mr Waller.

Result

[14]      There shall be an order pursuant to s 381 of the Insolvency Act 2006 appointing the Official Assignee Northern Region as administrator of the estate of Keith Alexander Waller.

[15]      The Commissioner of Inland Revenue is entitled to costs of this proceeding on a 2B basis and reasonable disbursements, such costs and disbursements to be paid out of Mr Waller’s estate.

O G Paulsen Associate Judge

Solicitors:
Inland Revenue Department Legal Services, Dunedin