FM CUSTODIANS LIMITED HAVENLEIGH GLOBAL SERVICES LIMITED V DAVID IAN HENDERSON HC CHCH CIV 2010-409-559

FM CUSTODIANS LIMITED HAVENLEIGH GLOBAL SERVICES LIMITED V DAVID IAN HENDERSON HC CHCH CIV 2010-409-559

Because Judge Osborne had given an express timetable allowing the debtor until 29 November 2010 to obtain creditor support, and because there was a realistic possibility that secured creditors' positions might change by security realisation which could affect voting by value, the Court declined to order adjudication...

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Citation
openlaw-757f82a3_3fb7_4a97_8b86_25348b5e57ee.pdf
Parties
Judgment Creditor (substituted): FM Custodians Limited; Judgment Creditor (substituted): Havenleigh Global Services Limited; Judgment Creditor: Allied Farmers Investments Limited; Judgment Debtor: David Ian Henderson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 November 2010
Procedural Posture
Bankruptcy/insolvency Proceedings Under the Insolvency Act 2006 / Interim Directions Hearing/adjournment; Matter Adjourned to 29 November 2010
Outcome
Adjourned to 29 November 2010; no adjudication order made today
Legal Topics
Creditors' Proposal, Adjudication Order, Confidentiality of Proposals, Security Realisation and Voting Value, Service of Documents
Insolvency Bankruptcy Civil Procedure Creditor Remedies Creditors' Proposal Adjudication Order Confidentiality of Proposals Security Realisation and Voting Value +1 more

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Parties

FM Custodians Limited

Judgment Creditor (substituted)

Havenleigh Global Services Limited

Judgment Creditor (substituted)

Allied Farmers Investments Limited

Judgment Creditor

David Ian Henderson

Judgment Debtor

Procedural Posture

Bankruptcy/insolvency Proceedings Under the Insolvency Act 2006 / Interim Directions Hearing/adjournment; Matter Adjourned to 29 November 2010

Legal Issues

  1. 1 Whether the court should order adjudication or adjourn to allow a creditors' proposal to be completed
  2. 2 Whether the proposal had the requisite support thresholds (50% by number and 75% by value)
  3. 3 Whether transfers of assets defeated creditors' claims

Ratio Decidendi

Because Judge Osborne had given an express timetable allowing the debtor until 29 November 2010 to obtain creditor support, and because there was a realistic possibility that secured creditors' positions might change by security realisation which could affect voting by value, the Court declined to order adjudication immediately despite inadequate disclosure; the Court required proof of proper service of the proposal and imposed limited confidentiality, and adjourned the matter to 29 November 2010 with the clear warning that adjudication would be ordered if the proposal could not then succeed.

Court Disposition

Adjourned to 29 November 2010; no adjudication order made today

Orders

  • Matter adjourned to 29 November 2010
  • Proof of service of the proposal outline upon all creditors to be filed such that creditors have at least three working days to indicate support or opposition (email delivery acceptable)