17 April 2015

Kiwisaver: Trustees Executors v. Official Assignee

The Insolvency Service cannot seize Kiwisaver contributions to pay creditors should any member of a KiwiSaver scheme become bankrupt, the Court of Appeal ruled in a landmark decision.
The KiwiSaver Act makes no specific mention of what should happen to contributor balances on bankruptcy.  The Court of Appeal ruled that the flavour of the Act is to lock savings in until retirement and that the specific rules governing early withdrawal do not cover circumstances of bankruptcy.
Evidence was given that as at January 2015 there were just over 5500 bankrupts with Kiwisaver balances totalling $27.3 million.  The majority of these bankrupts are under 50 years of age.
A test case was taken to determine how insolvency law applies to Kiwisaver accounts.  The Insolvency Service argued a bankrupt’s member contributions are “property” which could be used to pay the bankrupt’s creditors.  Government contributions including the $1000 kick-start payment and tax credits were not being claimed by the Insolvency Service.
The Court said KiwiSaver legislation prohibits the transfer of a contributor’s balance unless expressly provided by the KiwiSaver Act and nowhere does the Act expressly allow a transfer to the Insolvency Service on bankruptcy.
The Court further said the early withdrawal provisions in the Act do not apply on bankruptcy.  Financial hardship is a ground for early withdrawal.  The Court of Appeal said early withdrawal by a bankrupt does not alleviate the bankrupt from financial hardship, it alleviates hardship suffered by the bankrupt’s creditors.
Trustees Executors v. Official Assignee – Court of Appeal (17.4.15)

15.031