Wikely, re, ex parte Jacomb - [2014] NZHC 2677

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001589 [2014] NZHC 2677

UNDER the Insolvency Act 2006

IN THE MATTER OF a proposal under Part 5, Subpart 2 of the
Act by KENNETH DAVID WIKELEY AND

UNDER Regulation 32(1) Insolvency (Personal
Insolvency) Regulations 2007

IN THE MATTER OF an appeal by MICHAEL JOHN JACOMB, TRENA KATHLEEN JACOMB and PETER REGINALD RICHARDSON as trustees of the GENSET TRUST of the decision of JEFFREY PHILIP MELTZER as provisional trustee of the creditor's proposal of KENNETH DAVID WIKELEY to admit for voting purposes creditor's claims filed by GEMMA WIKELEY, JOHN SORENSON and JONATHON COLLINS

Hearing: 18 September 2014

Appearances:

J W G Grant for Appellants

A C Sorrell for Insolvent (K D Wikeley) K M Quinn for G Wikeley

No appearance by J Collins

M Taylor for provisional trustee (J P Meltzer) (abiding) (attendance excused)

Judgment:

30 October 2014

Re Wikeley, ex p Jacomb [2014] NZHC 2677 [30 October 2014]

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on Insolvency Act appeal

This judgment was delivered by me at pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Introduction

[1] Kenneth Wikeley (Mr Wikeley) is hopelessly insolvent.

[2] He has made a proposal to his creditors (the proposal) under Part 5, Subpart 2

Insolvency Act 2006.

[3] The appellants, as trustees of the Genset Trust, are creditors of Mr Wikeley. They have a judgment debt for USD 875,768.42 in relation to debts which Mr Wikeley guaranteed. Mr Wikeley owes the appellants a further $8,864.49,1 representing a costs judgment following Mr Wikeley’s unsuccessful appeal in relation to a High Court judgment in which the Court refused to set aside a bankruptcy notice issued by the appellants in August 2013.

[4] Mr Wikeley (in May 2014) filed the proposal. In his Statement of Affairs he deposed that he had debts of $4,874,756.04. The debts Mr Wikeley identified included those owed to the appellants but also included some said to be owed to a number of Mr Wikeley’s relations and colleagues.

[5] Jeffrey Meltzer, the provisional trustee (the trustee), received claim forms from eight claimants.

[6] At the meeting of creditors, held on 4 June 2014, the appellants alone (recorded by the trustee as creditors for $1,053,302.33) voted against the proposal. The trustee recorded seven votes (for $3,820,517.71) in favour of the proposal. He therefore recorded that majority in favour of the proposal as being 87.5 per cent by number and 78.39 per cent by value. Shortly afterwards, he filed an application for approval of the proposal. That application stands adjourned whilst this proceeding is determined.

[7] The appellants filed an appeal against the trustee’s decision to admit for voting purposes three claims. The claims were by:

1 In this judgment all the monetary figures are in New Zealand currency unless otherwise identified.

(a) Mr Wikeley’s daughter, Gemma Wikeley, who claimed a debt of

$3,032,828.00;

(b)Jonathon Collins, a Melbourne horse trainer acquainted with Mr Wikeley for some years, who claimed a debt of $58,707.13 (converted from…

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 Wikely, re, ex parte Jacomb

Details

AGLC: Wikely, re, ex parte Jacomb [2014] NZHC 2677
Case: [2014] NZHC 2677
Decision Date: 30 October 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal in the case of Re Wikeley, ex parte Jacomb. The appellants, as trustees of the Genset Trust, appealed against the decision of the provisional trustee to admit for voting purposes certain creditor's claims. The appellants argued that the claims were not properly proved and should not have been admitted for voting. The court had to determine the nature of the regime for proving debts for a Part 5 proposal, the consequences of non-compliance with the regime, the nature of the appeal jurisdiction, and the application of the appeal jurisdiction in this case.

The court found that the statutory and regulatory scheme for creditors' claims required a creditor's claim form to be signed, dated, and have attached evidence of the debt and any other supporting evidence. The court concluded that the requirements of the Regulations were a prerequisite of the admission of a creditor's claim, and that non-compliance with the regime for proving debts for Part 5 proposals led to the trustee rejecting the claims, with the consequence that the creditors with admitted claims would not have voted.

The court also found that the appeal jurisdiction under the Regulations allowed the court to come to its own view on the merits of the issue as to whether the disputed claims were admissible as having been proved. The court held that the trustee's decision to admit the claims was either right or wrong and that the issue was whether the trustee correctly admitted the disputed claims.

In this case, the court found that the trustee's decision to admit the claims of Gemma Wikeley and Jonathon Collins was wrong because they failed to provide the material detail of their claims as prescribed in the Regulations. The court rejected the claims of Gemma Wikeley and Jonathon Collins, and ordered them to pay a single set of the costs of the proceeding on a 2B basis together with disbursements.

Orders