Menzies v American Express International (NZ) Inc

[2020] NZHC 2858

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-296

[2020] NZHC 2858

UNDER

the Insolvency Act 2006

BETWEEN

RYAN MENZIES

Insolvent

AND

AMERICAN EXPRESS INTERNATIONAL (NZ) INC, ANZ BANK LIMITED, FLEXI

CARDS LIMITED trading as Farmers Card, FLEXI CARDS LIMITED trading as
Q Card, FLXI CARDS LTD trading as Flight Centre, HARMONEY LIMITED, WALLET WIZARD

Creditors

Hearing:	29 October 2020
Appearances:	G Davis for Insolvent
Judgment:	30 October 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 30 October 2020 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 30 October 2020

MENZIES v AMERICAN EXPRESS INTERNATIONAL (NZ) INC [2020] NZHC 2858 [30 October 2020]

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

[2]                 On 15 July 2020, the insolvent lodged his Proposal in the Court. Ms Liggins has accepted the role of provisional trustee. She has provided evidence to the Court of the process by which the Proposal was sent to creditors and I am satisfied, based on her evidence, that the Proposal was sent to all of the creditors of the insolvent identified in the Proposal.

[3]                 The creditors’ meeting was held on 27 August 2020. No creditors attended the meeting in person. All postal votes were in favour of the Proposal. One small creditor took no steps and another creditor, while requesting further information, also took no steps in relation to the meeting.

[4]                 The total indebtedness owed by the creditor is a little over $56,000. The Proposal involves weekly payments by the insolvent over a period of three years which will see the creditors receiving approximately 51 cents in the dollar before costs.

[5]                 With the Proposal having been passed, this application for approval of the Proposal was filed. An affidavit of service of this application has been provided and satisfies me that all creditors received notice of the application which received its first call on 29 October 2020.

[6]                 With the level of support the Proposal received at the creditors’ meeting and with no papers in opposition being filed, it was not surprising there were no appearances on behalf of any creditor opposing the application.

[7]                 As to the merits of the Proposal, I am satisfied it is in the prescribed form and the trustee’s report confirms the procedure at the creditors’ meeting was appropriate. The report produced by Ms Liggins complies with the Regulations.

[8]                 Nothing about the Proposal is unreasonable or not calculated to benefit the general body of creditors, that being the guiding criteria for approval under s 333(3) of the Act.

[9]                 As all creditors who voted supported the Proposal, the Proposal was passed by the required majority of creditors, that is, a majority in number and three quarters majority in value.1 The creditors have made their own assessment based on their commercial experience and at the end of the day, in the absence of there being some factor that stands against the approval of the Proposal, I adopt the normal approach, that is, the Court should accept the view of the creditors unless it is apparent that there exists a ground for refusing approval.2

[10]              Accordingly, I am satisfied it is appropriate that the Proposal  be approved and there is an order that the creditors’ Proposal of Ryan Menzies made 3 July 2020 and filed on 15 July 2020 is approved.

Associate Judge Lester

Solicitors:

Webster Malcolm Law, Warkworth

Copy to:
The Insolvent

1      Section 331(3) Insolvency Act 2006.

2      Re Bennetts Proposal HC Christchurch, B138/81 and M306/81, 1 February 1982 (alternative citation: Re Duncan Holdings Ltd (in liquidation). See also Farmer v Rowley [1992] 2 NZLR 195 (CA) at [196].