In 2013, Mrs Hanara was adjudicated bankrupt. The Assignee subsequently disclaimed Mrs Hanara's half-interest in a Hastings property (the Interest), in which Mrs Hanara had very little equity. In 2016, the owner of the other half-share in the property, Mr Hanara, was also adjudicated bankrupt. The Assignee, acting in respect of both bankrupt estates, looked again at the likely equity that might be available in the property. The Assignee considered that, on its own, Mr Hanara's one half- share in the property would be unsaleable and therefore applied under s 119
In Official Assignee v Carrim the High Court considered the concept of a "gift" in the Insolvency Act 2006.
The Official Assignee sought to cancel insolvent gifts made by the bankrupt to complete a property purchase by a family trust settled by the bankrupt and Ms Carrim, the bankrupt's partner (as trustees). The High Court considered:
The Supreme Court has recently dismissed an appeal against a Court of Appeal decision on the disclosure of trust documents to discretionary beneficiaries.
In Body Corporate 341188 v Kelly, a judgment debtor sought to overturn an Associate Judge's decision not to set aside a bankruptcy notice. The notice was in respect of a District Court judgment and a costs order obtained by the Body Corporate in a separate High Court proceeding. The debtor argued (among other grounds) that the notice was invalid because it was in respect of two judgment debts rather than one.
Three recent decisions clarify issues around personal bankruptcy proceedings.
These include:
compromise proposals
procedures for substitution of creditors, and
vesting of property disclaimed by the Official Assignee.
Debtors' compromises in bankruptcy proceedings
A bankruptcy notice under the Insolvency Act requires the debtor to pay the debt or compromise the amount owing on terms that satisfy the Court or the creditor.
Bankruptcy represents a significant interference with the bankrupt's property and business activities. Those consequences form the judicial policy at work in Re Bartercard Exchange Ltd [2016] NZHC 703, in which the Court refused to cure deficiencies in Bartercard's bankruptcy notice, and dismissed its application to adjudicate Mr de Vires bankrupt.
In Erceg v Erceg1 the New Zealand Court of Appeal ruled on the standing of bankrupt beneficiaries to bring claims against trustees. In addition, the Court considered the role of trustee discretion when determining beneficiary access to trust documentation. The decision is useful for trustees and beneficiaries alike, and provides clarity on the steps a Court may take when deciding whether or not to grant beneficiaries disclosure of trust information. Although this is a New Zealand decision, other common law courts such as Hong Kong may reach similar conclusions.
The Ministry of Business, Innovation and Employment (MBIE) is proposing law change after the Court of Appeal ruled that KiwiSaver funds are beyond the reach of the Official Assignee.
The effect of the ruling is to provide a higher level of protection for KiwiSaver balances than for other forms of retirement savings.
MBIE is seeking feedback on a range of options to create a uniform policy approach to the use of retirement savings in bankruptcy.
Submissions close on 30 September 2016. We encourage you to make a submission.
Background
Resumen: Mecanismo preconcursal para empresas en situación de insolvencia y que permite evitar la tramitación de concursos sin incurrir en responsabilidades los administradores societarios. Así mismo, instrumento necesario para conseguir el Beneficio de Exoneración de Pasivos Insatisfechos en caso de deudores personas físicas“.
Key Point
The court adjourned a bankruptcy hearing on the basis that a Spanish court sanctioned liquidation plan for a group of companies in which the debtor had an interest might release value for creditors.
The Facts