Musson v Ministry of Fisheries

[2012] NZHC 515

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV2011-425-000043 [2012] NZHC 515

BETWEEN  ANTHONY PHILLIP MUSSON Appellant

ANDMINISTRY OF FISHERIES Respondent

Hearing:         (On Papers)

Counsel:         A P Musson (In Person) S K Barr for Respondent

Judgment:      22 March 2012

JUDGMENT OF WHATA J

[1]      The  Ministry  of  Fisheries  have  obtained  judgment  in  the  District  Court against Mr Musson in the sum of $4,502.18.  Mr Musson appealed that judgment. Mr Musson failed to comply with a direction that he identify relevant grounds of appeal.  On that basis Lang J concluded that Mr Musson had no relevant grounds of

appeal in respect of that judgment and the appeal was dismissed.[1]

[1] Musson v Ministry of Fisheries HC Invercargill CIV 2011-425-000043, 6 April 2011

[2]      Mr  Musson  now  seeks  leave  to  appeal  that  judgment  out  of  time.    A preliminary issue has arisen as to Mr Musson’s standing to seek leave to appeal.  I was advised at a telephone conference that Mr Musson had in fact been adjudicated bankrupt.   I sought memoranda from the parties setting out the background to the application and in relation to any bankruptcy of Mr Musson.   The respondent has helpfully  provided  a  detailed  memorandum  setting  out  a  chronology  of  the pleadings, copies of judgments and also advising that the applicant was adjudicated

bankrupt in the High Court at Invercargill on 23 November 2011.

[3]      As the respondent submits, the applicant as a bankrupt, has no standing to challenge the judgment debt in his own name without the consent of the Official Assignee.  Section 101 of the Insolvency Act 2006 provides:

101     Status of bankrupt's property on adjudication

(1)      On adjudication, -

(a)      all  property  (whether  in  or  outside  New  Zealand) belonging to the bankrupt or vested in the bankrupt vests in the Assignee without the Assignee having to intervene or take any other step in relation to the property, and any rights of the bankrupt in the property are extinguished; and

(b)the powers that the bankrupt could have exercised in, over,  or  in  respect  of  any  property  (whether  in  or outside New Zealand) for the bankrupt's own benefit vest in the Assignee.

(2)      This section is subject to section 104.

[4]      The applicant has not provided any information that might assist me in this regard.  There is certainly no evidence of approval given by the Official Assignee to the continuance of these proceedings.

[5]      I can, accordingly, deal with the application for leave succinctly.   As the Court of Appeal stated in Shirley-Anne Carver and Ors v Neil Clarence Jack and Anor[2], the absence of the Official Assignee’s consent to continue with the appeal is a ground upon which an application for leave can be refused.

[2] Shirley-Anne Carver and Ors v Neil Clarence Jack and Anor [2010] NZCA 184

[6]      I should also add, having regard to the background to this matter and in particular  Lang J’s judgment,  I find  it  difficult  to  see that  any appeal  has  any prospect of success.  Mr Musson failed to set out proper grounds for his appeal to this Court.  It would be an abuse of process, in my view, to now afford Mr Musson a further appeal right, even if he was now prepared to set out those grounds.  He was

afforded an adequate opportunity to make his case in this Court and failed to do so.

[7]      On that basis, application for leave to appeal is declined.

Whata J

Solicitors::

Luke Cunningham & Clere, Wellington, for Respondent

Copy to:
A P Musson, 8 Thule Road, Stewart Island