Ballman v ASB Bank Limited

[2020] NZHC 456

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-75

[2020] NZHC 456

UNDER THE

Insolvency Act 2006

BETWEEN

DEREK BALLMAN

Insolvent

AND

ASB BANK LIMITED, AVANTI FINANCE LIMITED, BANK OF NEW ZEALAND,

COLUMBUS FINANCIAL SERVICES
LIMITED, HARMONEY LIMITED, JADE FINANCE LIMITED, LATITUDE FINANCIAL SERVICES LIMITED AND SBS MONEY LIMITED (WAREHOUSE MONEY)

Creditors

Hearing:	On the papers
Counsel:	No appearance for Insolvent No appearance for Creditors G P Seger for the Trustee
Judgment:	10 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 10 March 2020 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 10 March 2020

BALLMAN v ASB BANK LIMITED [2020] NZHC 456 [10 March 2020]

[1]                  This is an application for approval of a creditors proposal under pt 5 of the Insolvency Act 2006 (“the Act”).

[2]Mr Ballman’s proposal concerns eight creditors who are owed in total around

$50,000.

[3]                  The proposal is designed to return to the creditors 100 cents in the dollar through Mr Ballman making payments over a three-year period. In substance, the proposal is designed to “lock in” time payments of Mr Ballman’s debts.

[4]All eight creditors voted in favour of the proposal.

[5]                  While the proposal was served by email on the creditors, and I have previously commented on the correctness of using email for service, any issue in that regard fell away when each of the creditors confirmed receipt of the proposal by voting in favour of the proposal.

[6]The proposal is in the correct form required by the Act.

[7]                  The Trustee has filed an affidavit as to service of the notice of the present application. That was also sent by email to the eight creditors and but for the fact that all creditors voted in favour of the proposal, I would have had concerns about the use of email for the giving of the notice of hearing. The practical reality is that having voted in favour of the proposal, it is highly unlikely that any of the creditors would seek to oppose the proposal being approved by the Court. At the risk of labouring the point, I have previously raised my concerns with the giving of notice of the application for approval by way of email and I know the professional Trustee is aware of those concerns. However, given the unanimous support of the creditors I treat the application as having been brought to the attention of the creditors.

[8]                  With the unanimous support, I agree with the Trustee that the terms of the proposal are reasonable and calculated to benefit the general body of creditors. Certainly, that is the way the creditors have seen it and I see nothing to prevent an order approving the proposal.

[9]                  Accordingly, there is an order in terms of paragraph 2 of the application dated 19 December 2019.

Associate Judge Lester

Solicitors:
Webster Malcolm Law, Warkworth (for the Trustee)