Hubball

[2014] NZHC 2637

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2014-409-000568 [2014] NZHC 2637

IN THE MATTER OF

An application for a vesting order under

Section 119 of the Insolvency Act 2006

BETWEEN

SUZANNE GAIL HUBBALL First Applicant

AND

PAUL ANDREW HUBBALL Second Applicant

Hearing:	3 September 2014
Counsel:	C Mills for Applicants
Judgment:	28 October 2014

JUDGMENT OF WHATA J

Introduction

[1]      This matter comes before me as an application to grant leave to bring an application by way of originating application and that the property at 181 New Brighton Road, Christchurch, being Lot 4 on Deposited Plan 15976 in Computer Freehold Register CB551/90 Canterbury Land Registration District (Property) be vested in the applicants.

[2]      This matter was called before me on 3 September 2014.  At the hearing of this matter I indicated that I would grant the order sought with a judgment to follow. Regrettably, I did not make it sufficiently clear that the orders were in fact made and that the judgment was simply a record of my reasons.

[3]      In any event, in essence for the reasons set out in the application, I grant the application sought.

RE HUBBALL[2014] NZHC 2637 [28 October 2014]

Leave to commence

[4]      In terms of leave to commence by way of originating application, the High Court is the proper place for the application in accordance with r 19.5 of the High Court Rules.   Further, it is in the interests of justice to grant leave to commence this application  by  way  of  originating  application  in  order  to  achieve  maximum efficiency in terms of process.

Vesting

[5]      In terms of the vesting order, as stated by the applicants: (a)   They were the owners of the property;

(b)On 5 November 2010 they were adjudicated bankrupt by the High Court with  their title in the property being vested in  the  Official Assignee;

(c)      On 20 December 2010 the Official Assignee notified the applicants and other interested parties that the Official Assignee was disclaiming any interest in the property pursuant to s 117 of the Insolvency Act

2006 (the Act);

(d)The   disclaimer   of   the   property  by  the   Official  Assignee   has extinguished all of the Official Assignee’s rights and interests in the property in accordance with s 118 of the Act;

(e)      A significant period of time has elapsed since the Official Assignee’s disclaimer without any of the applicants’ former creditors applying for the property to be vested in them; and

(f)      The  Crown  does  not  oppose  that  the  property  be  vested  in  the applicants.

[6]      The full background to this application is detailed in the affidavit provided by

Ms Hubball.  It is unnecessary for me to repeat the content of that affidavit here.  I

simply note that the property had been subject to mortgages to the ANZ Bank and to Gold Band Finance Limited.  Both have indicated by way of correspondence to her that no recourse would be had to the property for the purpose of satisfaction of the mortgages.  Both the Hubballs were discharged from bankruptcy in November 2013 and there is no suggestion of any ongoing claim against them.

[7]      Accordingly, in all of the circumstances I consider it fair in terms of s 119(2)

that an order be made.

[8]      There shall be orders accordingly as sought by the applicants.

Solicitors:

Lane Neave, Christchurch