In re Vaai Richard Mason MacDonald [1994] WSCA 10; 22 1993 (30 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 22/93

IN THE MATTER of VAAI RICHARD MASON MacDONALD
of Apia, Company Director
carrying on business as MAC'S VARIETY SHOPPE
Appellant

AND

IN THE MATTER A.M. MACDONALD HOLDINGS LTD
a duly incorporated company having its registered office at Savalalo
near Apia in Western Samoa
Respondent

Coram: The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 30 March 1994

Counsel: R.S. Toailoa for Appellant
Mrs R. Drake for Respondent

Judgment: 30 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

On the 29 November 1993 the appellant Vaai Richard Mason Macdonald was adjudicated bankrupt upon the petition of the judgment creditor, A.M. Macdonald Holdings Ltd. The bankrupt then gave notice of appeal and also sought a stay of execution in respect of the bankruptcy. However in accordance with the procedure in respect of the bankruptcy the adjudication order was advertised in the local press. The Official Assignee wrote to the bankrupt for a statement of his affairs, but has not taken any further steps since that time in view the stay ordered by the Court on the 2nd day of March 1994. The respondent, the judgment creditor, had notice of the appeal and when the case was called for hearing today, Mrs Drake who had represented the judgment creditor throughout the proceedings appeared and sought leave to withdraw. She explained to the Court that that was on the instructions of the New Zealand solicitors acting for the respondent because of the material change of circumstances within the company structure and the members of the Macdonald family. That being the case, leave was granted to her to withdraw.

Mr Toailoa for the appellant was able to explain the situation further by producing a letter which had been received by one of the Macdonald family from the trustee in the estate which is the principal shareholder in the judgment creditor company. This letter explains the background why there is no appearance now in this Court on behalf of the judgment creditor. The letter informs the Court that there would be no opposition and indeed consent from the judgment creditor to the bankrupt's appeal, that the family who made up the "ultimate beneficiaries of the company" wanted this new approach to be taken by the judgment creditor, and finally that if the appeal did not succeed the company would consent to an annulment of the bankruptcy if such an application were made. The appellant, that is the bankrupt, has upon the appeal sought an order of annulment by the Court which in view of what is contained in the letter seems now to be the appropriate course to take in this case. There is the provision in s.136 of the Bankruptcy Act 1908 (NZ) which section applies in the Independent State of Western Samoa for an annulment of an adjudication to be made. The section provides:

".... the adjudication shall be annulled from and after the date of the order annulling it".

The Official Assignee has appeared before the Court and informed the Court of the steps which he had taken and which have already been referred to and informed the Court that the cost of advertising amounted to $500. He seeks reimbursement in that regard and that is only proper in the circumstances. This seems to be a case in which the judgment creditor pressed ahead with that petition in bankruptcy and now has in effect abandoned that course of action. It is appropriate therefore that it should meet the expenses which were incurred. The order is made that the sum of $500 be paid by the respondent to the Official Assignee to reimburse him.

Mr Toailoa has submitted that the jurisdiction of the Court to make an annulment order in this case falls within paragraph (a) to section 136 which reads:

"Where in the opinion of the court, an order of adjudication ought not to have been made".

The annulment sought in this case is brought about by a complete change of circumstances from those before the Chief Justice when the order of adjudication was made. The judgment creditor no longer wishes to have an order of adjudication of bankruptcy in respect of this bankrupt. That is a sufficient ground of this Court to make an order of annulment which it now does.

Costs to the appellant in the sum of $2,500 against the respondent company are ordered.

Solicitors:
Toailoa, Apia for Appellant
Drake & Co., Apia for Respondent