ULLRICH ALUMINIUM CO LIMITED V THE BANKRUPTCY OF DJ BLACKMORE HC WN CIV-2012-485-730

ULLRICH ALUMINIUM CO LIMITED V THE BANKRUPTCY OF DJ BLACKMORE HC WN CIV-2012-485-730

The court refused to adjudicate the debtor bankrupt immediately because the Part 5 proposal had not been formally filed and served and could not be summarily characterised as hopeless without full argument and investigation; therefore the bankruptcy application was adjourned to allow the Part 5 application to be properly made, served and scrutinised and for clarification of the debtor's debts and liabilities.

Citation
openlaw-1b137f13_0676_4161_bff6_e4c3f09903e9.pdf
Parties
Judgment Creditor: Ullrich Aluminium Company Limited; Judgment Debtor: David John Blackmore; Supporting Creditor: Westpac NZ Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 November 2012
Procedural Posture
Bankruptcy Application Under Insolvency Act 2006 / Adjournment Hearing / Interlocutory
Outcome
Application to adjudicate bankrupt adjourned to permit filing, service and full consideration of Part 5 proposal; final hearing set for 5 December 2012
Legal Topics
Part 5 Creditors' Proposal, Adjudication of Bankruptcy, S333 Approval Criteria, Creditor Voting, Adjournment Directions
Insolvency Bankruptcy Civil Procedure Part 5 Creditors' Proposal Adjudication of Bankruptcy S333 Approval Criteria Creditor Voting Adjournment Directions

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Parties

Ullrich Aluminium Company Limited

Judgment Creditor

David John Blackmore

Judgment Debtor

Westpac NZ Ltd

Supporting Creditor

Procedural Posture

Bankruptcy Application Under Insolvency Act 2006 / Adjournment Hearing / Interlocutory

Legal Issues

  1. 1 Whether the court should adjudicate the debtor bankrupt now or adjourn to consider a Part 5 proposal under s333 Insolvency Act 2006
  2. 2 Whether the Part 5 proposal is hopeless and cannot succeed such that immediate bankruptcy is appropriate
  3. 3 Whether the proposal complies with sub‑part 2 of Part 5 and satisfies s333(3)(b) and (c) as reasonable and expedient

Ratio Decidendi

The court refused to adjudicate the debtor bankrupt immediately because the Part 5 proposal had not been formally filed and served and could not be summarily characterised as hopeless without full argument and investigation; therefore the bankruptcy application was adjourned to allow the Part 5 application to be properly made, served and scrutinised and for clarification of the debtor's debts and liabilities.

Court Disposition

Application to adjudicate bankrupt adjourned to permit filing, service and full consideration of Part 5 proposal; final hearing set for 5 December 2012

Orders

  • Bankruptcy application and Part 5 creditors' proposal hearing set for 2:15 pm on 5 December 2012 (half day allocated)
  • Judgment debtor to file and serve the formal s333(1) Part 5 proposal application without delay