Omambac v ANZ Bank New Zealand Limited

[2022] NZHC 2125

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-282

[2022] NZHC 2125

UNDER

the Insolvency Act 2006

BETWEEN

HERCULANO OMAMBAC

Insolvent

AND

ANZ BANK NEW ZEALAND LIMITED, HARMONEY LIMITED, LATITUDE FINANCIAL SERVICES LIMITED,

Q CARD LIMITED, THE CO-OPERATIVE BANK LIMITED and WESTPAC BANKING CORPORATION

Creditors

Hearing:	18 August 2022 (by AVL)
Appearances:	R Shahram for Insolvent’s Trustee No other appearances
Judgment:	25 August 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Insolvent’s Proposal)

OMAMBAC v ANZ BANK NEW ZEALAND LIMITED [2022] NZHC 2125 [25 August 2022]

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

[2]                 Ms Christine Liggins, the provisional trustee, advises in her trustee’s report that the Proposal filed with the Court was dated March 2022. The Court’s copy is date stamped 1 April 2022.

[3]                 The meeting of creditors was scheduled for 12 May 2022. It was adjourned on 11 May 2022 and held on 9 June 2022.

[4]                 The Proposal was e-mailed by Ms Liggins to each creditor on 1 April 2022. She sought and obtained confirmation of receipt from each creditor. Accordingly, I am satisfied that each of the creditors was given notice of the Proposal, that fact reinforced beyond doubt because each of the creditors responded to the request to vote on the Proposal.

[5]                 All but one of the insolvent’s creditors voted to accept the Proposal. That one vote against the Proposal did not prevent it being accepted by a majority in number of creditors and three quarters in value of the creditors who voted. One creditor abstained but advised it would accept the outcome.

[6]                 The total value of creditors who voted in favour of the Proposal is $159,963.25. The value of the creditor who voted against the Proposal is $20,910.44. The creditor who abstained is owed $17,948.84.

[7]                 Under the Proposal, the insolvent will make payments of $1,000 per fortnight for a period of five years, which will result in approximately 50 cents in the dollar, subject to the costs of the Proposal, being returned to creditors.

[8]                 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 those requirements have been met.

[9]                 On 20 July 2022, the creditors were given notice 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.

[10]             The approach adopted by the Courts 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

[11]             The creditors all appear to be financiers. All but one have commercially addressed the Proposal and elected to accept it. The one creditor who abstained has confirmed it will accept the majority view. 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

[12]             There is an order approving the Proposal by Herculano Omambac under pt 5, subpt 2 of the Insolvency Act 2006 filed on 1 April 2022.

Associate Judge Lester

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