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

OMAMBAC v ANZ BANK NEW ZEALAND LIMITED [2022] NZHC 2125 [25 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-282[2022] NZHC 2125UNDER the Insolvency Act 2006BETWEEN HERCULANO OMAMBACInsolventAND ANZ BANK NEW ZEALAND LIMITED,HARMONEY LIMITED, LATITUDEFINANCIAL SERVICES LIMITED,Q CARD LIMITED, THE CO-OPERATIVEBANK LIMITED and WESTPACBANKING CORPORATIONCreditorsHearing: 18 August 2022 (by AVL)Appearances: R Shahram for Insolvent's TrusteeNo other appearancesJudgment: 25 August 2022JUDGMENT OF ASSOCIATE JUDGE LESTER(Insolvent's Proposal)[1] The insolvent seeks approval of a proposal (the Proposal) under pt 5 of theInsolvency Act 2006 (the Act).[2] Ms Christine Liggins, the provisional trustee, advises in her trustee's reportthat the Proposal filed with the Court was dated March 2022. The Court's copy is datestamped 1 April 2022.[3] The meeting of creditors was scheduled for 12 May 2022. It was adjournedon 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 amsatisfied that each of the creditors was given notice of the Proposal, that fact reinforcedbeyond doubt because each of the creditors responded to the request to vote on theProposal.[5] All but one of the insolvent's creditors voted to accept the Proposal. That onevote against the Proposal did not prevent it being accepted by a majority in number ofcreditors and three quarters in value of the creditors who voted. One creditor abstainedbut 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 creditorwho abstained is owed $17,948.84.[7] Under the Proposal, the insolvent will make payments of $1,000 per fortnightfor 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 Actthe Proposal must be in the prescribed form and accompanied by a statement of assetsin the prescribed form. I am satisfied those requirements have been met.[9] On 20 July 2022, the creditors were given notice of this application forapproval 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 bythe creditors.[10] The approach adopted by the Courts is, unless it is apparent one of the groundsfor refusing approval under s 333(3) of the Act applies, the Court should accept theview of the creditors or the majority of them.1[11] The creditors all appear to be financiers. All but one have commerciallyaddressed the Proposal and elected to accept it. The one creditor who abstained hasconfirmed it will accept the majority view. The one party who opposed the Proposalhas not taken any steps to oppose this application. In the circumstances, I am satisfiedit 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 Lester1 Farmer v Rowley [1992] 2 NZLR 195 (CA) at 205.