The Ministry of Business, Innovation, and Employment is seeking leave to withdraw from prosecuting bankrupt Christchurch developer Dave Henderson.
The proceedings have been lodged in the District Court and Mr Henderson has been given a copy of the application.
The attempt to prosecute Mr Henderson for using a credit card to seek credit of less than $5000 came ahead of his public examination on June 9 which would determine if he is to be released from Official Assignee supervision.
“These proceedings were always malicious. They were brought for an improper purpose,” Mr Henderson told NBR ONLINE.
“These people, like so many of the miserable, middle-aged men that populate government departments, are just bullies using their power improperly.
“I intend to pursue them for malicious prosecution. It seems to me they only brought the charges to garner publicity and cause me problems.
“My examination at the moment still proceeds on June 9. It is something of a mystery to me how they can now proceed with that given that they have had to acknowledge that their senior staff, amongst other things, make things up.”
The letter from the Ministry of Business, Innovation, and Employment hints at an error made when filing the prosecution.
It refers to section 438 of the Insolvency Act. The second part opf the section says the Official Assignee must obtain certification of the Crown solicitor to take a prosecution.
Apparently, the Official Assignee and the Crown solicitor were unaware of the requirement, which may lead to reconsideration of several similar cases.
The Ministry of Business, Innovation, and Employment goes on to say – “There is no prescribed form for certification. However, the view has been reached that the process followed may not meet the formal requirements of certification in terms of s438.”
The letter also says that due to a two-year statutory time frame the charges will not be re-filed.
“For completeness it remains the view of the prosecution there was sufficient evidence for the proceedings to have been commenced and otherwise continued.”