New Zealand Case Law: Decisions & Judgments

Topic

Creditor status

Legal area

Court

16 Nov 2023

LUCAS v AVETAR PROPERTIES LIMITED [2023] NZHC 3232

Citation

[2023] NZHC 3232
Court

High Court

There was a genuine and substantial dispute whether the applicant was a creditor; Avetar was able to pay its debts and not insolvent on the evidence; accordingly appointment of a liquidator was unjustified and the application was dismissed; just and equitable ground also not made as applicant was neither director nor shareholder and the dispute should be resolved in the Family Court or ordinary proceedings.
2 Sept 2021

AVON PARNELL LTD v CHEVIN [2021] NZHC 2301

Citation

[2021] NZHC 2301
Court

High Court

The Court held that s 44 of the Insolvency Act 2006 permits substitution of more than one creditor (interpreting singular/plural inclusively and relying on Re Bruns and the statutory scheme including s 13), and on the evidence Waimauri Limited is a creditor by virtue of enforceable loan agreements and the debtor's admissions; substitution of two creditors was therefore valid and not a nullity (and in any event curable under s 418 if necessary).
8 Jul 2020

HARMONEY LIMITED v COMMERCE COMMISSION [2020] NZCA 275

Citation

[2020] 3 NZLR 552
Court

Court of Appeal

The credit contract in the Harmoney P2P structure comprises the Loan Contract, the Loan Disclosure and the Borrower Agreement when read objectively and by express cross-reference; Harmoney is a 'creditor' under the CCCFA because its gatekeeper role (registration, vetting, assigning credit grade, setting key terms, approving listing and notifying funding) constitutes at least a significant part of granting the right to incur the debt; the Platform Fee is a 'credit fee' insofar as it is payable by the debtor under the credit contract and payable to Harmoney as creditor, but it does not qualify…
26 Jun 2017

CHEVIN DRAINAGE LIMITED v TLW TRUSTEE LIMITED [2017] NZHC 1446

Citation

[2017] NZHC 1446
Court

High Court

The plaintiff failed to prove on the balance of probabilities that it was the creditor entitled to the claimed debt because contemporaneous evidence (the 26 July 2016 email exchange and the invoice) established the contract with Chevin Civil (Ltd or Chevin Civil 2015 Ltd); alleged clerical errors and later use of the plaintiff's bank/GST details were insufficient to alter the contractual identity, so the liquidation applications were dismissed.
17 Aug 2016

TIME3 GLOBAL LTD v NORRIE AS LIQUIDATOR OF PAKIRI INVESTMENTS LTD (IN LIQUIDATION) [2016] NZCA 400

Citation

[2016] NZCA 400
Court

Court of Appeal

The appeal is allowed because the Associate Judge's uncontested factual finding that Time3 was not a creditor was open on the evidence; without a creditor/debtor relationship the transaction could not be set aside under s295, and the liquidator also failed to prove any transfer of intellectual property such as would support an order under s298, so the order directing transfer back was quashed and the cross-appeal dismissed.
23 Aug 2013

STRATEGIC FINANCE LIMITED v MOSS [2013] NZHC 2158

Citation

[2013] NZHC 2158
Court

High Court

Where the proposed substitute applicants' status as creditors was materially contested in concurrent proceedings likely to determine indebtedness, the court should refuse immediate substitution and instead require a formal, evidenced application with a timetable and a defended hearing to determine substitution and related procedural orders.

New Zealand Case Law

LUCAS v AVETAR PROPERTIES LIMITED [2023] NZHC 3232

AVON PARNELL LTD v CHEVIN [2021] NZHC 2301

HARMONEY LIMITED v COMMERCE COMMISSION [2020] NZCA 275

CHEVIN DRAINAGE LIMITED v TLW TRUSTEE LIMITED [2017] NZHC 1446

TIME3 GLOBAL LTD v NORRIE AS LIQUIDATOR OF PAKIRI INVESTMENTS LTD (IN LIQUIDATION) [2016] NZCA 400

STRATEGIC FINANCE LIMITED v MOSS [2013] NZHC 2158