OA can't make Henderson return from Spain - but keeps the faith
Sun-seeking Auckland bankrupt developer David (Princes Wharf) Henderson can't be forced to come home from Spain - or where ever he is - but promised he would.
And while he may be in hot water with the Official Assignee for skipping off without permission, Mr Henderson can still come and go overseas as he pleases because there appears no legal power to stop him, according to OA David Harte.
The OA has no legal power to seize Mr Henderson's, or any bankrupt's passport,
And Mr Henderson could not be stopped from leaving the country again because bankrupts were not automatically barred at the airport gate.
The reason the Ministry of Economic Development could not enact a Customs hold on bankrupts at the airport, in the same way the Ministry of Justice and IRD could for people with unpaid parking fines or taxes, was because bankruptcy was not a criminal offence, said Mr Harte.
Mr Harte told The National Business Review he was still confident the roistering party-boy would return from a superyacht holiday in Spain – but said he couldn't make him if he stayed in hiding.
Mr Henderson broke bankruptcy rules when he flew out of the country on Friday, June 10 – the day after he was made bankrupt by the High Court.
He told Mr Harte this week he was holidaying on an associate’s superyacht off the coast of Spain – not Australia, as Mr Henderson’s lawyer Daniel Grove first claimed.
Travelling without permission of the OA could lead to Mr Henderson's prosecution, with maximum penalties of three years in jail and/or a $10,000 fine.
Mr Harte told NBR Mr Henderson was “most definitely” expected back to New Zealand in June, with a meeting date for the pair set for soon after his return.
His attendance at the meeting was mandatory, said Mr Harte.
The New Zealand Customs Service’s system of border alerts were prioritised for serious offending, he said.
That was often misunderstood.
“If we have grounds to believe a bankrupt is a flight risk with adverse consequences to the administration if he or she leaves [the country] we can instead lodge a border alert to prevent future travel. But we need to establish those grounds first.”
The OA is now investigating whether Mr Henderson set out to mislead the OA with the initial claim he was in Australia last week.
Who was meant to inform Mr Henderson of the bankruptcy travel ban?
Mr Henderson’s lawyer Daniel Grove initially took the rap for his client’s failure to seek OA permission to travel overseas.
But Mr Harte said it was the responsibility of the bankrupt personally to be aware of the restrictions on them, which applied immediately when the order of bankruptcy was made in court.
“The obligation on the bankrupt kicks in right at that moment when the order is made, so it doesn’t rely on us, or leave room for them to say, oh, no one’s spoken to me about that.”
Mr Harte said once the order was made in court, the OA moved swiftly to inform the bankrupt of key obligations.
The first step was a phone call, followed up with a formal, detailed letter the bankrupt was required to sign and return to the OA in order to confirm the obligations were understood.
The OA personally interviewed every new bankrupt in a formal, face-to-face meeting soon after they are declared bankrupt, with further meetings held as required during the three-year bankruptcy term.
Breaking the travel ban was not common for the amount of bankruptcies in the country, said Mr Harte.
Most bankrupts were aware of the terms because they put themselves into bankruptcy, with only 20% of bankruptcies forced by creditors through the court, he said.