Collett v ANZ Bank New Zealand Limited

[2022] NZHC 2073

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2022-476-10

[2022] NZHC 2073

UNDER

the Insolvency Act 2006

BETWEEN

VANESSA COLLETT

Insolvent

AND

ANZ BANK NEW ZEALAND LIMITED, FINANCE NOW LIMITED, FLIGHT

CENTRE MASTERCARD, HARMONEY LIMITED, LATITUDE FINANCIAL SERVICES LIMITED, Q CARD LIMITED, SMARTCOVER FINANCE LIMITED, SMITHS CITY FINANCE LIMITED and UNITY CREDIT UNION T/A UNITY

Creditors

Hearing:

16 August 2022

(Telephone Conference)

Counsel:

R Shahram for Creditors No other appearances

Judgment:

19 August 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

COLLETT v ANZ BANK NEW ZEALAND LIMITED [2022] NZHC 2073 [19 August 2022]

[1]                 The insolvent seeks approval of a Proposal under pt  5 of the Insolvency    Act 2006 (the Act).

[2]                 The Proposal was lodged with the  Court  on  11 April 2012  and  sent  by  Ms Christine Liggins, the provisional trustee, to the creditors on 7 April 2022. Nothing turns on that notice being sent slightly in advance of the Proposal making its way to the Court. The meeting of creditors was scheduled for 19 May 2022.

[3]                 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.

[4]                 All but one of the insolvent’s creditors voted to accept the Proposal. That one vote against did not prevent the Proposal being accepted by a majority in number of creditors and three quarters in value of the creditors who voted.

[5]                 Under the Proposal the insolvent will make payments of $238 per week for   a period of three years, resulting in a return to creditors of approximately 50 cents in the dollar, subject to the costs of the Proposal.

[6]                 Given the relatively modest level of the insolvent’s salary, the Proposal represents, in my view, the insolvent making a serious effort to address her debts.

[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 these requirements have been met.

[8]                 Ms Liggins gave notice to the creditors of this application for approval of the Proposal, again by e-mail, but again, each recipient confirmed receipt. Accordingly,  I am satisfied that notice of the application for approval was received by the creditors.

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

[10]              The creditors all appear to be financiers.   All but one of them have made      a commercial assessment of the Proposal and elected to accept it. The one party who opposed the Proposal has not taken any steps to oppose this application. In the circumstances, I am satisfied it is appropriate to approve the Proposal.

Order

[11]              Accordingly, there is an order approving the Proposal by Vanessa Collett under pt 5, subpt 2 of the Insolvency Act 2006 lodged with the Court on 11 April 2022.

Associate Judge Lester

Solicitors:

Webster Malcolm Law, Warkworth

1      Farmer v Rowley [1992] 2 NZLR 195 (CA) at 205.