The Court of Appeal has recently confirmed that the provisions of the Kiwisaver Act that restrict access to or early withdrawal (except in exceptional circumstances) also apply in respect to any claim by an Official Assignee where the Kiwisaver member is in bankruptcy.
The Official Assignee in the case in question had attempted to obtain the bankrupts Kiwisaver fund for the purpose of distribution to creditors. The Court of Appeal decided that the provisions of the Kiwisaver legislation were clear and only in the case of an express exception to that protection could the Kiwisaver funds be available. Such an exception does not exist for bankruptcy.
The Court found the objective of the Kiwisaver legislation is to encourage a long term savings habit to increase the wellbeing and financial independence of individuals in retirement. There is nothing in the legislation that suggests its purpose is to accumulate funds for the benefit of creditors in the event of a members bankruptcy.
If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co. who normally advises you, or alternatively contact:
Paul Farry
pfarry@farry.co.nz
09 379 0055 or 03 477 8870
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.