Open AccessShould Pension Savings Be a Protected Property at Bankruptcy?
Author(s) -
Trish Keeper
Publication year - 2017
Publication title -
qut law review
Language(s) - English
Resource type - Journals
eISSN - 2205-0507
pISSN - 2201-7275
DOI - 10.5204/qutlr.v17i1.704
Subject(s) - bankruptcy , insolvency , appeal , creditor , pension , context (archaeology) , law , business , law reform , law and economics , economics , finance , political science , debt , paleontology , biology
In 2015, the New Zealand Court of Appeal held, in Trustee Executors Ltd v The Official Assignee,[1] a test case brought by the Official Assignee (OA), that the OA could not access the KiwiSaver balances of a bankrupt. In response, the Ministry of Business, Innovation and Employment released a Discussion Document in July 2016, proposing a law change to make some, or all, of a bankrupt’s pension savings available to the OA for the benefit of a bankrupt’s creditors. This article outlines the Court of Appeal decision and its implications within the context of both the New Zealand Insolvency Act 2006 and the KiwiSaver Act 2006. It then critically discusses the law change proposed in the Discussion Document and suggests that, given the significant difficulties with this proposal, more limited reforms be implemented to prevent bankrupts unfairly using the inalienability of pension savings to defeat the interests of creditors.
[1] [2015] NZCA 118.