HENSHAW v ANZ NATIONAL BANK LIMITED [2019] NZHC 3330

HENSHAW v ANZ NATIONAL BANK LIMITED [2019] NZHC 3330

The application for approval of the proposal is adjourned because service of the application and meeting notice by email to two non‑responding creditors (and omission to notify a secured creditor) was not established as valid service, and because the trustee's report contains errors and unclear repayment calculations; the court indicates the proposal otherwise appears approvable but cannot finally approve until the trustee corrects the report and demonstrates valid service to all known creditors.

Citation
[2019] NZHC 3330
Parties
Insolvent: Ethan Angus Henshaw; Creditor: ANZ National Bank Limited; Creditor: Westpac New Zealand Limited; Creditor: Thorn Group Financial Services Limited; Creditor: American Express International (NZ) Inc; Creditor: Harmoney Limited; Creditor: Flexi Cards Limited; Creditor: Heartland Bank Limited; Creditor: Latitude Financial Services Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 December 2019
Procedural Posture
Insolvency / Application for Approval of Proposal; Interim Judgment; Adjourned to Address Service and Trustee's Report Issues
Outcome
Application adjourned to telephone conference on 12 February 2020 at 9:00am. Trustee ordered to correct report and prove valid service to all known creditors including the two non‑responding creditors and the secured creditor before approval will be considered.
Legal Topics
Proposal Approval, Service of Process, Trustee Duties, Creditors' Meeting, Statutory Interpretation
Insolvency Law Civil Procedure Proposal Approval Service of Process Trustee Duties Creditors' Meeting Statutory Interpretation

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Parties

Ethan Angus Henshaw

Insolvent

ANZ National Bank Limited

Creditor

Westpac New Zealand Limited

Creditor

Thorn Group Financial Services Limited

Creditor

American Express International (NZ) Inc

Creditor

Harmoney Limited

Creditor

Flexi Cards Limited

Creditor

Heartland Bank Limited

Creditor

Latitude Financial Services Limited

Creditor

Procedural Posture

Insolvency / Application for Approval of Proposal; Interim Judgment; Adjourned to Address Service and Trustee's Report Issues

Legal Issues

  1. 1 Whether notice by email satisfied statutory requirement to 'post' under s 330 of the Insolvency Act 2006 and whether notice of the s 333 application was validly served
  2. 2 Whether the trustee complied with s 333(1) by notifying all known creditors including secured creditors
  3. 3 Whether errors in the trustee's report (incorrect assets/liabilities and repayment calculations) undermine approval of the proposal

Ratio Decidendi

The application for approval of the proposal is adjourned because service of the application and meeting notice by email to two non‑responding creditors (and omission to notify a secured creditor) was not established as valid service, and because the trustee's report contains errors and unclear repayment calculations; the court indicates the proposal otherwise appears approvable but cannot finally approve until the trustee corrects the report and demonstrates valid service to all known creditors.

Court Disposition

Application adjourned to telephone conference on 12 February 2020 at 9:00am. Trustee ordered to correct report and prove valid service to all known creditors including the two non‑responding creditors and the secured creditor before approval will be considered.

Orders

  • Application adjourned to a telephone conference at 9.00am on Wednesday 12 February 2020
  • Counsel to file any submissions in respect of service and any evidence concerning the two creditors who did not vote and corrections to the trustee's report by Tuesday 4 February 2020 (five working days prior)