Roebuck

[2018] NZHC 917

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-783 [2018] NZHC 917

UNDER

Section 119(2) of the Insolvency Act 2006

IN THE MATTER

Of Ngaire Margaret Roebuck

IN THE MATTER

Of an application by Ngaire Margaret

Roebuck for a vesting order following a Disclaimer of Property by the Official Assignee dated 8 Deember 2014

BETWEEN

NGAIRE MARGARET ROEBUCK

Applicant

Hearing:	On the papers
Judgment:	3 May 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on

03.05.18 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Sandi Anderson Counsel:

Eugene St John

Application for vesting order N M ROEBUCK [2018] NZHC 917 [3 May 2018]

[1]    This is a without notice interlocutory application for leave to commence a proceeding under s 119(2) of the Insolvency Act 2006 (“the Act”) by way of originating application, and for consequent orders on the papers.

[2]    The background is that until 28 March 2017 the applicant, Ngaire Roebuck, was the registered owner of the registered lease over 9/145 Quay Street, Auckland (Identifier NA125D/31, Deposited Plan 196813) being Apartment 9, car park 41 and storage locker 178 (“the property”). The property is subject to a mortgage in favour of Westpac Bank.

[3]    Ms Roebuck, the applicant, was adjudicated bankrupt on 28 March 2017 and the property vested in the Official Assignee under s 101 of the Act.

[4]    On 26 June 2017, the Official Assignee disclaimed his interest in the property pursuant to s 117 of the Act and the property vested in the Crown.

[5]    On 27 January 2018 Ms Roebuck signed an agreement for sale and purchase to sell the property, but could not complete the sale as she is not the owner of the property.

[6]    The affidavit of Ms Roebuck in support of originating application annexes correspondence from the Crown (Treasury), Westpac and the Official Assignee confirming that the application under s 119(2) is not opposed, and that none of those entities require to be served with the application.

[7]    Other recent and similar cases1 have confirmed that where all parties affected by the application have either consented or did not oppose the vesting, it is appropriate in the interests of justice that orders be made. As Ms Roebuck notes this approach will maximise the returns from the sale of the property. I am therefore satisfied in this case that service may be dispensed with, and that the substantive orders sought by Ms Roebuck should be made.

1      Re Beaton [2015] NZHC 1304 and Re Mitchell [2016] NZHC 2473.

[8]Accordingly, I make the following orders:

(a)Granting permission for the applicant’s claims to be commenced by way of originating application.

(b)Dispensing with service on each of the Official Assignee, Westpac New Zealand Limited, and the Treasury.

(c)Transferring the registered lease over 9/145 Quay Street, Auckland (Identifier NA125D/31, Deposited Plan 196813) being Apartment 9, car park 41 and storage locker 178, currently vested in the Crown to Ngaire Margaret Roebuck.

(d)There is no order regarding costs.

Powell J