Fawcett

[2014] NZHC 2663

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-587 [2014] NZHC 2663

IN THE MATTER	of the Insolvency Act 2006
AND IN THE MATTER	of the bankruptcy of CHRISTOPHER LOUIS FAWCETT

Hearing:	28 October 2014
Appearances:	P V Cornege for Official Assignee C L Fawcett in person
Judgment:	29 October 2014

JUDGMENT OF ASSOCIATE JUDGE J DOOGUE

RE FAWCETT [2014] NZHC 2663 [29 October 2014]

[1]      Mr Fawcett was adjudicated bankrupt on 15 September 2010.  He would have been discharged from bankruptcy after three years but the Official Assignee opposed his discharge.  That led to a hearing before Peters J on 11 December 2013, in which the Judge considered whether or not Mr Fawcett should be discharged from bankruptcy taking into account, amongst other things, the grounds of opposition which the Official Assignee put forward.

[2]      The Official Assignee has brought criminal proceedings against Mr Fawcett alleging that he has acted in contravention of s 149 of the Insolvency Act 2006 by carrying on a business while bankrupt. Those charges have yet to be heard.

[3]      The  outcome  of  the  decision  in  the  High  Court  was  that  Justice  Peters

dismissed Mr Fawcett’s application for discharge in a judgment she gave on 7 May

2014. The Judge also directed, pursuant to s 298(1)(e) of the Act that:

Mr Fawcett may make a fresh application for discharge on the earlier of the determination of the criminal charges or at any time after 1 December 2014.

[4]      Mr Fawcett has made an application for stay of proceedings to the District Court with the essential ground on which that application is based being that the charges  were  laid  by  an  employee  of  the  Ministry of  Business  Innovation  and Employment who was not authorised to do so.  That application is scheduled to be heard on 5 December 2014.

[5]      The position which the Official Assignee takes is therefore that Mr Fawcett has filed an application for discharge which is premature in that it was made before

1 December 2014 or before the date when the criminal charges against him were determined, whichever was the earlier.

[6]      Mr Fawcett says that he seeks “an indulgence” from the Court to nonetheless entertain  the  application  for  discharge.    He  says  that  the  Official Assignee  has deliberately delayed the hearing of the charges so as to prejudice Mr Fawcett by causing further delays to when he can make an application for discharge.  He says for that reason the Court should overlook the fact that the current application for discharge was contrary to the literal terms of the order which Peters J made.

[7]      Counsel for the Official Assignee, Mr Cornege, referred me to the provisions of s 294 of the Insolvency Act which provides as follows:

294     Bankrupt may apply for discharge

(1)       The bankrupt may at any time apply to the Court for an order of discharge from bankruptcy.

(2)       However, if the Court has previously refused an application by the bankrupt for a discharge, and has specified the earliest date when the bankrupt may again apply, the bankrupt must not apply before that date.

(3)      The hearing of the application must be in accordance with section

177.

[8]      Mr Cornege specifically drew my attention to the provisions of ss 2.  That subsection,  Mr  Cornege  said,  was  mandatory  in  its  terms  and  it  says  that  the bankrupt “must not apply” before the earliest date specified in the Court judgment. Therefore, he submitted, the Court has no basis for hearing the current application filed as it was, in contravention of s 294(2), Mr Cornege argued.

[9]      I consider that the position which the Official Assignee takes is correct.

[10]     The wording of s 294(2) is, as Mr Cornege says, mandatory.   It would be wrong in principle for a Court to entertain an application which has been filed in contravention of that subsection.   It is not a matter of the Court showing some “indulgence” to Mr Fawcett.  The Court does not have any discretion to over-ride the requirements of a statute in the way proposed.

[11]     Further,  the  issue  of  whether  the  Official  Assignee  has  impeded  early resolution by the Court of the charges against Mr Fawcett is not a matter that the Court can go into.  I should add, that there is no evidence that the Official Assignee has  taken  such  a  course.    But  even  assuming  that  he  had,  the  fact  is  that  the provisions of s 294(2) do not make an exception for circumstances of the kind about which Mr Fawcett complains, namely that the Official Assignee has caused delays in disposing of the charges which it has brought against Mr Fawcett.

[12]     For those reasons I consider that the Court does not have any authority to enquire into an application for discharge from adjudication which has been filed in contravention  of  the  requirements  of  the  judgment  which  Peters  J  gave  and

accordingly it must be dismissed.

J P Doogue

Associate Judge