COLLIN JAMES ELDER and ADELINE WEI WEI ELDER HC AK CIV 2011-404-002766 / 002767

COLLIN JAMES ELDER and ADELINE WEI WEI ELDER HC AK CIV 2011-404-002766 / 002767

The Court held that absent evidence that related creditors were controlled or improperly influenced, their claims and votes could not be discounted; the waivers by major creditors (Ng, van Rijn) materially benefited the general body; sufficient evidence established certainty of the funds to be paid under the Proposals and there was no evidential basis for public‑interest intervention or further Official Assignee investigation; accordingly both Proposals satisfied s333(3)(b) and (c) and were approved.

Citation
openlaw-b2ca11f2_de0e_4ecd_bd76_179cdf8dae3d.pdf
Parties
Insolvent Applicant: Collin James Elder; Insolvent Applicant: Adeline Wei Wei Elder; Respondent / Opponent: Commissioner of Inland Revenue; Creditor / Opponent: Origin Mortgage Management Services (2008) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 February 2012
Procedural Posture
Proposal Approval Under Part 5 of the Insolvency Act 2006 / Application for Court Approval of Separate But Related Proposals; Hearing 20 February 2012; Judgment 22 February 2012
Outcome
Both Proposals approved by the High Court
Legal Topics
Proposal Approval, Creditor Voting and Related Parties, Expediency/public Interest, Certainty of Payment, Voidable Dispositions / Investigations
Insolvency Bankruptcy Tax Commercial Law Proposal Approval Creditor Voting and Related Parties Expediency/public Interest Certainty of Payment +1 more

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Parties

Collin James Elder

Insolvent Applicant

Adeline Wei Wei Elder

Insolvent Applicant

Commissioner of Inland Revenue

Respondent / Opponent

Origin Mortgage Management Services (2008) Limited

Creditor / Opponent

Procedural Posture

Proposal Approval Under Part 5 of the Insolvency Act 2006 / Application for Court Approval of Separate But Related Proposals; Hearing 20 February 2012; Judgment 22 February 2012

Legal Issues

  1. 1 Whether creditor votes of related or associated parties should be discounted for the purposes of s333(3)
  2. 2 Whether the terms of the Proposals are reasonable and calculated to benefit the general body of creditors under s333(3)(b)
  3. 3 Whether it is expedient in the public interest to approve the Proposals or to adjudicate bankrupt under s333(3)(c)

Ratio Decidendi

The Court held that absent evidence that related creditors were controlled or improperly influenced, their claims and votes could not be discounted; the waivers by major creditors (Ng, van Rijn) materially benefited the general body; sufficient evidence established certainty of the funds to be paid under the Proposals and there was no evidential basis for public‑interest intervention or further Official Assignee investigation; accordingly both Proposals satisfied s333(3)(b) and (c) and were approved.

Court Disposition

Both Proposals approved by the High Court

Orders

  • The Court grants approval of both Proposals in the form submitted for approval