Olliver - [2025] NZHC 1218

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000712 [2025] NZHC 1218

UNDER the Insolvency Act 2006

of a proposal under part 5 Subpart 2 of the Insolvency Act 2006 by GREGORY MARTIN OLLIVER of 7 Cheverton Place,

St Heliers, Auckland, 1071

Hearing: 15 May 2025

Appearances:

A Ward for the Provisional Trustee

R B Hucker / M Swan for the Insolvent

T B Fitzgerald / S Komie for the secured creditor, 1543 Capital Fund 1 LP

S McClean for Bank of New Zealand K Eastwood for K3 Legal

Judgment:

19 May 2025

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 19 May 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Anderson Lloyd, Dunedin Bell Gully, Auckland Molloy Hucker, Auckland
Urlich Milne Lawyers Ltd, Auckland

RE OLLIVER [2025] NZHC 1218 [19 May 2025]

Introduction

[1] The Provisional Trustee, Kevin John Whitley, seeks orders that the Court approve a Proposal to the creditors of Gregory Martin Olliver (the Insolvent), dated 9 December 2024 (Proposal), made under Pt 5, Sub-pt 2 of the Insolvency Act 2006 (Act).

[2] Applying to the Court for approval of the Proposal is the final stage in the process allowing an insolvent to avoid bankruptcy by making a proposal to creditors for the payment or satisfaction of the insolvent’s debts.1

[3]When the application was called there were the following appearances:

(a)A Ward for the Provisional Trustee;

(b)R B Hucker / M Swan for the Insolvent;

(c)T B Fitzgerald / S Komie for the secured creditor, 1543 Capital Fund 1 LP;

(d)Ms McClean for Bank of New Zealand;

(e)Ms Eastwood for K3 Legal.

[4] There was no appearance on behalf of any other creditor or otherwise objecting to the Proposal.

[5] Having heard from counsel for the Provisional Trustee and having considered the following:

(a)the with notice application for approval of proposal dated 18 February 2025;

1 Insolvency Act 2006, s 326; and as contained in sub-pt 2 of pt 5 of the Act.

(b)the statement of affairs and affidavit of Insolvent affirmed on 9 December 2024;

(c)the Proposal dated 9 December 2024 under sub-part 2 of Part 5 of the Act;

(d)the report of the Provisional Trustee on the Proposal dated 18 February 2025,

I approve the Proposal.

Proposal process and approval by the Court

[6] The first stage in seeking the Court’s approval is for a proposal to be filed satisfying the requirements of s 327 of the Act. This includes nominating a trustee for collection and distribution of instalments paid. This person is the provisional trustee until the proposal is approved.

[7]This Proposal is the second proposal promulgated by the Insolvent.

[8] The first was considered and rejected by the Insolvent’s creditors. It was, therefore, cancelled.2

[9] The current Proposal is dated 9 December 2024. This judgment deals with approval of this Proposal by the Insolvent.

[10]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Olliver

Details

AGLC: Olliver [2025] NZHC 1218
Case: [2025] NZHC 1218
Decision Date: 19 May 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Olliver involves the insolvency proposal submitted by Gregory Martin Olliver, dated 9 December 2024, under Part 5, Subpart 2 of the Insolvency Act 2006. The Provisional Trustee, Kevin John Whitley, sought court approval for this proposal, which is intended to allow Olliver to avoid bankruptcy by proposing a payment plan to his creditors. The hearing was held on 15 May 2025, with appearances made by representatives for the Provisional Trustee, Olliver, the secured creditor 1543 Capital Fund 1 LP, Bank of New Zealand, and K3 Legal. No other creditors or parties objected to the proposal.

The legal issues before the Court included whether the requirements of Subpart 2 of Part 5 of the Insolvency Act 2006 had been complied with, whether the proposal was reasonable, and if there were any reasons why it would not be expedient to approve the proposal. Additionally, the Court had to determine if there were any grounds under section 333(4) of the Act that mandated refusal of the proposal. The Court's reasoning focused on the procedural compliance, the reasonableness of the proposal from the perspective of a commercially prudent creditor, and the suitability of the proposal given the circumstances.

The Court concluded that the proposal complied with the procedural requirements of the Act, including the necessary notices to creditors and the required majority in number and three-quarters in value of the creditors who voted. The proposal was deemed reasonable as it aimed to fully repay Olliver's creditors, and there were no apparent public interest or commercial considerations that would counter the creditors' assessment. The Court found it expedient to approve the proposal and determined that there were no grounds under section 333(4) that mandated against approval.

The Court approved the Proposal of Gregory Martin Olliver dated 9 December 2024 pursuant to section 333 of the Insolvency Act 2006 and granted the orders sought under section 335 of the Act. The bankruptcy petition by Bank of New Zealand against Olliver was adjourned to 5 December 2025 at 10:00 am.

Orders