Agi v ANZ Bank Limited

[2020] NZHC 1023

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-571

[2020] NZHC 1023

UNDER

the Insolvency Act 2006

BETWEEN

CHARLIE AGI

Insolvent

AND

ANZ BANK LIMITED, BANK OF NEW ZEALAND HARMONY LIMITED, LATITUDE FINANCIAL SERVICES LIMITED and WESTPAC NEW ZEALAND LIMITED

Creditor

Hearing:	14 May 2020
Appearances:	G D Davis
Judgment:	18 May 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 18 May 2020 at 2.15pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 18 May 2020

CHARLIE AGI v ANZ BANK LIMITED [2020] NZHC 1023 [18 May 2020]

[1]                 The insolvent seeks approval of  a  proposal  under  Part  5  of  the  Insolvency Act 2006 (“the Act”).

[2]                 The proposal was lodged with the Court on 9  October 2019  and sent  by   Ms Christine Liggins, the provisional trustee, to the creditors on 17 October 2019. While Ms Liggins emailed the proposal to each creditor, she sought and obtained confirmation of receipt. Accordingly, I am satisfied that each of the creditors was given notice of the proposal.

[3]                 Of the insolvent’s five creditors, only one voted against the proposal. The insolvent’s total debts are $107,835 with the ANZ Bank Limited owed $10,766.92.

[4]                 Accordingly, a majority in number and over 75 per cent in value of creditors who voted, voted in favour of the proposal.

[5]                 Under the proposal, the insolvent will make 78 fortnightly payments $420 to his trustee to be paid onto his creditors. The proposal incorrectly states that this will return to creditors about 50 per cent in the dollar.   The actual figure is just over     30 per cent ($420 x 78 = $32,750).

[6]                 While the proposal is in error in that regard, the actual figures set out in the proposal were there for the various financial institutions to see and review. The fact is, the proposal is what it is in terms of the money available and it is clear from the disclosure given that in a practical sense, the proposal offers a significantly better outcome for creditors than the insolvent’s bankruptcy.

[7]                 Turning to the form and substance of the application. Under s 327 of the Act, the proposal must be in the prescribed form and accompanied by a statement of assets in the prescribed form. I am satisfied that was done in this case. As I have said, notice of the proposal and of this application was in fact received by the creditors as they applied to Ms Liggins’ emails.

[8]                 The approach adopted by the Court is that unless it is apparent that one of the grounds for refusing approval under s 333(3) of the Act applies, that the Court should accept the view of the creditors or the majority of them.1

[9]                 All of the creditors are financiers. Four of them have made a commercial assessment of the proposal and elected to accept it. While the ANZ Bank Limited voted against the proposal, it has not taken any steps to oppose this application.

[10]              In the circumstances, I am satisfied that it is appropriate to approve the proposal.

[11]              Accordingly, there is an order approving the proposal by Charlie Agi under Part 5, subpart 2 of the Insolvency Act 2006 lodged with the Court on 9 October 2019.

[12]              Finally, I note that Mr Agi’s affidavit of 9 October 2019 has been witnessed by a Police Officer. Police Officers are not one of the persons empowered to administer oaths.2 I treat this as an oversight, not invalidating the application, but raise it for future reference.

Associate Judge Lester

Solicitors:
Webster Malcolm Law, Warkworth

1      Farmer v Rowley (1992) 2 NZLR 195 (CA 196).

2      See Oaths and Declarations Act 1957, s 9 and High Court rules 2016, r 9.85.