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.