Trans-Tasman Proceedings (Specified Australian Insolvency Judgments Excluded From Recognition or Enforcement in New Zealand and Excluded Matter) Order 2013

2013/345

Coat of Arms of New Zealand

Trans-Tasman Proceedings (Specified Australian Insolvency Judgments Excluded From Recognition or Enforcement in New Zealand and Excluded Matter) Order 2013

Jerry Mateparae, Governor-General

Order in Council

At Wellington this 2nd day of September 2013

Present:
The Right Hon John Key presiding in Council

Pursuant to sections 4(2)(b) and 54(2)(a) and (b) and (3) of the Trans-Tasman Proceedings Act 2010, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following order.

Order

1 Title

  • This order is the Trans-Tasman Proceedings (Specified Australian Insolvency Judgments Excluded From Recognition or Enforcement in New Zealand and Excluded Matter) Order 2013.

2 Commencement

  • This order comes into force on 11 October 2013.

3 Interpretation

  • In this order, unless the context otherwise requires,—

    Act means the Trans-Tasman Proceedings Act 2010 of New Zealand

    Australian domestic insolvency laws include, without limiting the generality of that term, the following laws of the Commonwealth of Australia:

    • (a) section 459A (order that insolvent company be wound up in insolvency) of the Corporations Act 2001 (Aust):

    • (b) section 472 (court to appoint official liquidator) of the Corporations Act 2001 (Aust):

    • (c) section 43 (jurisdiction to make sequestration orders) of the Bankruptcy Act 1966 (Aust):

    • (d) the Model Law on Cross-Border Insolvency as that Model Law has, with or without modification or variation, the force of law in Australia by virtue of the Cross‑Border Insolvency Act 2008 (Aust)

    insolvency proceeding means a collective judicial or administrative proceeding (in the Model Law on Cross-Border Insolvency called a foreign proceeding), including an interim proceeding, pursuant to a law relating to insolvency (whether personal or corporate) in which the assets and affairs of a debtor are subject to control or supervision by a judicial or other authority competent to control or supervise that proceeding, for the purpose of reorganisation or liquidation

    Model Law on Cross-Border Insolvency means the Model Law on Cross-Border Insolvency adopted by the United Nations Commission on International Trade Law on 30 May 1997, and approved by the General Assembly of the United Nations on 15 December 1997 (GA Res 52/158, A/Res/52/158 (1998)), as that Model Law is implemented (with or without modification or variation) both—

    • (a) in Australian domestic law, by the Cross‑Border Insolvency Act 2008 (Aust); and

    representative means a person or body (in the Model Law on Cross-Border Insolvency called a foreign representative), including one appointed on an interim basis, authorised in an insolvency proceeding to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the insolvency proceeding.

4 Specified Australian insolvency judgments excluded from recognition or enforcement in New Zealand

  • (1) This clause declares a specified Australian insolvency judgment to be excluded from recognition or enforcement under subpart 5 of Part 2 of the Act.

    (2) The declaration is made for the purposes of section 54(2)(b) of the Act (which relates to non-money judgments of a kind excluded from recognition or enforcement under that subpart).

    (3) A specified Australian insolvency judgment, in this clause, means a judgment that is given under Australian domestic insolvency laws and that does only the following:

    • (a) commences, and (directly or indirectly) appoints in Australia a representative to act in or in respect of, an insolvency proceeding in Australia; or

    • (b) recognises, or recognises the appointment outside Australia of a representative to act in or in respect of, an insolvency proceeding outside Australia.

5 Excluded matter: assistance or relief under Cross-Border Insolvency Act 2008 (Aust)

  • (1) This clause declares a matter to be excluded from the operation of subpart 5 of Part 2 of the Act.

    (2) The declaration is made for the purposes of paragraph (d) of the definition of excluded matter in section 4(1) of the Act.

    (3) The matter is assistance or relief or both granted in Australia under the Cross-Border Insolvency Act 2008 (Aust) during either or both of the following periods:

    • (a) from the time of filing an application for recognition of an insolvency proceeding outside Australia until the application is decided upon:

    • (b) upon or after recognition of an insolvency proceeding outside Australia.

    (4) The effect of the declaration is that a judgment that wholly or partly relates to the matter is not, under section 54(2)(a) of the Act, a registrable Australian judgment.

Rebecca Kitteridge,
Clerk of the Executive Council.

Explanatory note

This note is not part of the order, but is intended to indicate its general effect.

This order is made under the Trans-Tasman Proceedings Act 2010 (the Act) and comes into force (at the same time as most of the Act's provisions do) on 11 October 2013.

It declares a specified Australian insolvency judgment to be excluded from recognition or enforcement in New Zealand under subpart 5 of Part 2 of the Act. The declaration is made for the purposes of section 54(2)(b) of the Act. A specified Australian insolvency judgment is, for these purposes, a judgment that is given under Australian domestic insolvency laws and that does only the following:

  • commences, and (directly or indirectly) appoints in Australia a representative to act in or in respect of, an insolvency proceeding in Australia; or

  • recognises, or recognises the appointment outside Australia of a representative to act in or in respect of, an insolvency proceeding outside Australia.

It also declares a matter to be excluded from the operation of subpart 5 of Part 2 of the Act. The declaration is made for the purposes of paragraph (d) of the definition of excluded matter in section 4(1) of the Act. The excluded matter is assistance or relief or both granted in Australia under the Cross-Border Insolvency Act 2008 (Aust) during either or both of the following periods:

  • from the time of filing an application for recognition of an insolvency proceeding outside Australia until the application is decided upon:

  • upon or after recognition of an insolvency proceeding outside Australia.

The order ensures that a judgment of that kind or that wholly or partly relates to that excluded matter is, under section 54(2)(a) or (b) of the Act and for the purposes of subpart 5 of Part 2 of the Act, not a registrable Australian judgment. This order ensures that outcome because—

  • assistance in New Zealand or Australia in connection with an insolvency proceeding in the other country is to be sought and given only under the relevant domestic laws giving effect to the United Nations Commission on International Trade Law (or UNCITRAL) Model Law on Cross-Border Insolvency; and

  • judgments given under those relevant domestic implementing laws are not to be enforceable in the other country.

This order does not, however, prevent from being registrable in New Zealand under subpart 5 of Part 2 of the Act a judgment that is given under Australian domestic insolvency laws but that is not a specified Australian insolvency judgment and does not relate to that excluded matter.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 5 September 2013.

This order is administered by the Ministry of Justice.