Horton v McKillen

[2015] NZHC 3134

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1212 [2015] NZHC 3134

UNDER

Part 5, Subpart 2 of the Insolvency Act

2006

IN THE MATTER

of a proposal by Shane Fulton McKillen to Creditors under Part 5 Subpart 2 of the Insolvency Act 2006

BETWEEN

CHRISTOPHER ROBERT ROSS HORTON

Applicant

AND

SHANE FULTON MCKILLEN Insolvent

MCKILLEN FAMILY TRUST NO. 1
Creditor

MCKILLEN FAMILY TRUST NO. 2
Creditor

MCKILLEN FAMILY TRUST NO. 3
Creditor

MICHAEL MORTON Creditor

MICHAEL MORTON NO. 2 TRUST Creditor

AUDREY INVESTMENTS LIMITED Creditor

BANK OF NEW ZEALAND Creditor

COLLINSVILLE SECURITIES LIMITED

Creditor

UDC FINANCE LIMITED Creditor

HORTON  v MCKILLEN & ORS [2015] NZHC 3134 [11 December 2015]

FLEXIGROUP NZ LIMITED Creditor

AND

CIV-2015-404-1215

UNDER  Regulation 32(1) Insolvency (Personal

Insolvency) Regulations 2007

IN THE MATTER             of an appeal by Audrey Investments Limited of the decision of CHRISTOPHER ROBERT ROSS HORTON as provisional trustee of the creditors' Proposal of SHANE FULTON MCKILLEN

BETWEEN  AUDREY INVESTMENTS LIMITED Apellant

ANDCHRISTOPHER ROBERT ROSS HORTON

Respondent

AND CIV-2015-404-235

IN THE MATTER             a Proposal made by SHANE FULTON MCKILLEN to Creditors

BETWEEN  CHRISTOPHER ROBERT ROSS HORTON

Applicant

ANDSHANE FULTON MCKILLEN Insolvent

MCKILLEN FAMILY TRUST NO. 1

Creditor

MCKILLEN FAMILY TRUST NO. 2

Creditor

MCKILLEN FAMILY TRUST NO. 3

Creditor

MICHAEL MORTON Creditor

MICHAEL MORTON NO.2 TRUST Creditor

AUDREY INVESTMENTS LIMITED Creditor

BANK OF NEW ZEALAND LIMITED Creditor

COLLINSVILLE SECURITIES LIMITED

Creditor

UDC FINANCE LIMITED Creditor

FLEXIGROUP NZ LIMITED Creditor

Hearing:	22 June and 21 September 2015
Appearances:	B Gustafson for the Insolvent G Blanchard for the Trustee M Robinson and L Gellert for Audrey Investments Ltd L O'Gorman and A Harlowe for Bank of New Zealand
Judgment:	11 December 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

11.12.15 at 4.00 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Background

[1]      Mr  McKillen,  the  insolvent,  has  made  a  proposal  to  his  creditors  (“the Proposal”) which was considered at a creditors’ meeting on 19 February 2015.  The applicant, Mr Horton, who is the provisional trustee (“PT”), in the usual way at the conclusion of the meeting, determined which creditors were eligible to vote on the Proposal and determined the value that ought to be attributed to all of those claims so admitted in order that he carry out a calculation to determine whether the requisite majority required under s 331 of the Insolvency Act 2006 (“the Act”) supported the Proposal.

[2]       One of the creditors who attended the meeting was Audrey Investments Ltd (“Audrey”).  Audrey, by its counsel, Mr Robinson, submitted that certain creditors, who the PT considered ought to be entitled to vote, should not in fact have their claims recognised for the purposes of voting. Those contentions were rejected by the PT who concluded that the Proposal was supported by the majorities exceeding the statutory requirements that the Proposal be supported by the majority in number and

three quarters in value of the creditors who vote and are present at…