HANTOM v NZCU BAYWIDE [2020] NZHC 126 .

HANTOM v NZCU BAYWIDE [2020] NZHC 126 .

Because all affected creditors (other than an intentionally unserved secured creditor) received notice by email, responded and approved the proposal, and the failure to serve the secured creditor was a deliberate decision accepted would leave that creditor unbound, the Court exercised its discretion to treat service requirements as satisfied in the circumstances and granted approval of the creditors' proposal; the risk of using email notice without express consent lies with the insolvent.

Citation
[2020] NZHC 126
Parties
Insolvent: Michael Hantom; Creditor: NZCU Baywide trading as NZCU South; Creditor: SBS Money Limited (Warehouse Money); Creditor: AvantiFinance Limited; Creditor: Finance Now Limited; Creditor: Flexi Cards Limited trading as Q Card
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 February 2020
Procedural Posture
Insolvency Creditors' Proposal Approval / Application to Approve Creditors' Proposal (recalled)
Outcome
Application to approve the insolvent's creditors' proposal granted
Legal Topics
Creditors' Proposal, Service of Process by Email, Secured Creditor Treatment, Court Discretion on Proposal Approval
Insolvency Law Civil Procedure Creditors' Rights Creditors' Proposal Service of Process by Email Secured Creditor Treatment Court Discretion on Proposal Approval

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Parties

Michael Hantom

Insolvent

NZCU Baywide trading as NZCU South

Creditor

SBS Money Limited (Warehouse Money)

Creditor

AvantiFinance Limited

Creditor

Finance Now Limited

Creditor

Flexi Cards Limited trading as Q Card

Creditor

Procedural Posture

Insolvency Creditors' Proposal Approval / Application to Approve Creditors' Proposal (recalled)

Legal Issues

  1. 1 Whether the creditors' proposal should be approved by the Court
  2. 2 Whether failure to serve a secured creditor precludes approval
  3. 3 Whether notice given by email without express agreement is sufficient for service

Ratio Decidendi

Because all affected creditors (other than an intentionally unserved secured creditor) received notice by email, responded and approved the proposal, and the failure to serve the secured creditor was a deliberate decision accepted would leave that creditor unbound, the Court exercised its discretion to treat service requirements as satisfied in the circumstances and granted approval of the creditors' proposal; the risk of using email notice without express consent lies with the insolvent.

Court Disposition

Application to approve the insolvent's creditors' proposal granted

Orders

  • The creditors' proposal of the insolvent is approved.