Re Diston [2016] NZHC 722

Re Diston [2016] NZHC 722

The court found statutory requirements (ss327, 328, s333(4)) satisfied, the enhanced terms and increased contributions meant the proposal was not derisory and was likely preferable to a bankruptcy in commercial terms, the majority creditors' approval (including banks) was entitled to weight, and no sufficient expediency reason existed to refuse approval; accordingly the proposal was approved under s333.

Citation
[2016] NZHC 722
Parties
Proposer/insolvent: Guy Marshall Diston; Trustee: John Marshall Scutter; Creditor/opponent: Tompson; Creditor/mortgagee: ANZ Bank; Creditor: Bank of New Zealand; Creditor: Hair
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 April 2016
Procedural Posture
Application for Court Approval of a Proposal Under the Insolvency Act 2006 (s 333) / Hearing and Oral Judgment (approval Granted)
Outcome
Proposal approved by the High Court under s333 Insolvency Act 2006
Legal Topics
Proposal Approval, S333 Insolvency Act, Priority Debts, Trustee Fees and Expenses, Creditors' Meeting, Derisory Dividend, Expediency
Insolvency Bankruptcy Civil Procedure Creditor Remedies Proposal Approval S333 Insolvency Act Priority Debts Trustee Fees and Expenses +3 more

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Parties

Guy Marshall Diston

Proposer/insolvent

John Marshall Scutter

Trustee

Tompson

Creditor/opponent

ANZ Bank

Creditor/mortgagee

Bank of New Zealand

Creditor

Hair

Creditor

Procedural Posture

Application for Court Approval of a Proposal Under the Insolvency Act 2006 (s 333) / Hearing and Oral Judgment (approval Granted)

Legal Issues

  1. 1 Whether the proposal complies with statutory requirements ss327 and 328 and s333(4)
  2. 2 Whether the terms of the proposal are reasonable and calculated to benefit the general body of creditors (s333(3)(b))
  3. 3 Whether it is inexpedient to approve the proposal (s333(3)(c)) in light of a previous refusal

Ratio Decidendi

The court found statutory requirements (ss327, 328, s333(4)) satisfied, the enhanced terms and increased contributions meant the proposal was not derisory and was likely preferable to a bankruptcy in commercial terms, the majority creditors' approval (including banks) was entitled to weight, and no sufficient expediency reason existed to refuse approval; accordingly the proposal was approved under s333.

Court Disposition

Proposal approved by the High Court under s333 Insolvency Act 2006

Orders

  • Proposal of Guy Marshall Diston approved under s333 Insolvency Act 2006
  • John Marshall Scutter confirmed/appointed as trustee