Flores v ANZ Bank New Zealand Limited

[2022] NZHC 294

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-297

[2022] NZHC 294

UNDER

the Insolvency Act 2006

BETWEEN

RODERICK FLORES

Insolvent

AND

ANZ BANK NEW ZEALAND LIMITED EAGLE M.A.N. GROUP LIMITED FINANCE NOW LIMITED

LATITUDE FINANCIAL SERVICES LIMITED

THE CO-OPERATIVE BANK LIMITED

Creditors

Hearing:	24 February 2022
Appearances:	R Sharam for the Provisional Trustee
Judgment:	25 February 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

FLORES v ANZ BANK NEW ZEALAND LIMITED [2022] NZHC 294 [25 February 2022]

[1]                 The insolvent, Mr Flores, seeks approval of a proposal under pt 5 of the Insolvency Act 2006 (the Act).

[2]                 While the proposal was emailed to creditors, each creditor has either acknowledged receipt of the email or, by voting on the proposal, confirmed they received the proposal. I am satisfied each of the creditors named in the proposal was given notice of the proposal.

[3]                 Of the insolvent’s five creditors, one took no steps, notwithstanding having acknowledged receipt of the proposal. The remaining four voted in favour. I am satisfied that a majority in number and over 75 per cent in value of creditors who voted, voted in favour of the proposal.

[4]                 Under the proposal the insolvent will make 78 payments of $460.00 per fortnight to his trustee to be paid to the creditors. These payments will return to creditors over 50 cents in the dollar.

[5]                 After the proposal was approved by the creditors, the trustee brought this application for approval by the Court. Notice was given of the present application to those creditors who voted by email and again, each of the creditors confirmed receipt of the email. While technically email service may not be regular, the fact is each of the creditors who were emailed confirmed receipt. I am satisfied all creditors were given notice of the present application. In respect of the creditor who did not vote, notice of this application was sent to them by post.

[6]                 No creditor has taken any steps in this proceeding and accordingly the application is not opposed.

[7]                 I now turn to the form and substance of the application. Under s 327 of the Act the proposal must be in the prescribed form and be accompanied by a statement of assets in the prescribed form. I am satisfied these requirements are met in this case.

[8]                 The approach adopted by the Court is that, 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

[9]                 The creditors in this case are banks or finance companies.  They have made   a commercial assessment of the proposal and elected to accept it. The insolvent explained how he got into the present position with his debts. Given the level of support and the absence of opposition, I am satisfied that there is nothing about the proposal that is unreasonable or not calculated to benefit the creditors.

[10]              Accordingly, there is an order approving the proposal by Roderick Flores under pt 5, sub-pt 2 of the Insolvency Act 2006 lodged with the Court on 22 May 2021.

Associate Judge Lester

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