06 March 2015

Blue Chip: Bryers v. Official Assignee

Blue Chip promoter Mark Bryers has been discharged from bankruptcy but is prohibited from running any business in New Zealand until 2022 after opposition to his discharge by the Official Assignee.  The Insolvency Service had wanted a lifetime ban.
Mr Bryers created the Blue Chip investment scheme inviting retail investors to finance apartment developments.  The Blue Chip empire of seventy one companies went into liquidation in 2011 with losses of some $310 million.  Mr Bryers personally owed $150 million.  He was bankrupted in October 2009.  Insolvency Service inquiries found that personal assets previously owned by Mr Bryers were tied up in a trust.  The only asset available was a tax refund of $113,166.
In the normal course of events, restrictions on bankruptcy end after three years.  In the interim Mr Bryers was convicted of offences under the Financial Reporting Act and the Companies Act which saw him prohibited from managing any company for five years.  He served a sentence of 75 hours community work and paid a $37,490 fine.
The High Court was told Mr Bryers spent much of the last five years living in Australia.  A bankrupt cannot leave New Zealand without the Official Assignee’s consent.  Mr Bryers was given consent.  But the Insolvency Service was critical that Mr Bryers appeared to be managing a business in Australia while bankrupt.  There was evidence of unsuccessful attempts to replicate a Blue Chip-style business across the Tasman.  It was alleged Mr Bryers has an ongoing management role within an Australian company: Talos.  In New Zealand, the Insolvency Act forbids any undischarged bankrupt from carrying on a business without the consent of the Official Assignee.  Judge Doogue ruled that New Zealand insolvency legislation does not have extra-territorial effect: it only applies to activities carried on in New Zealand.  Mr Bryers was not in breach of New Zealand law by managing a business in Australia, but His Honour said Mr Bryer’s activities in Australia were relevant in deciding whether he should be discharged from bankruptcy in New Zealand.     
The court was told Mr Bryers is working under the name of Mark Ryan while holding a senior management role within Talos.  Mr Bryers claimed he was simply a consultant to the company.  Judge Doogue said he was plainly not a consultant, but was discharging management functions within Talos.  It was not of trivial importance, His Honour said, that Mr Bryers worked under an assumed name in Australia.  Neither Talos nor Mr Bryers wanted it to get out that he was a person with an undesireable business history in New Zealand.
Judge Doogue ruled that Mr Bryers does represent a continuing commercial risk to New Zealand investors.  He discharged Mr Bryers from bankruptcy but prohibited him from running any business in New Zealand for a further period of seven years.
Bryers v. Official Assignee – High Court (6.03.15)

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