New Zealand Case Law: Decisions & Judgments

Topic

Proposal approval under s333

Legal area

Court

2 Mar 2018

WANG v GALLOWAY PROPERTIES LIMITED [2018] NZHC 284

Citation

[2018] NZHC 284
Court

High Court

Despite the accidental omission of a creditor, the court approved the proposal because on balance the proposal was reasonable, benefited the general body of creditors, the omission could be remedied under s333(6) by including the omitted creditor and allocating the $60,000 wholly to creditors, and there was no persuasive evidence that Galloway's participation would have changed the commercial judgment of the creditor body or the outcome of the vote.
28 Aug 2015

STEVEN JAMES TOMPSON AND KAREN MICHELLE TOMPSON v GUY MARSHALL DISTON [2015] NZHC 2050

Citation

[2015] NZHC 2050
Court

High Court

The court refused to approve the proposal because its terms were not reasonable and not calculated to benefit the general body of creditors: the dividend to unsecured creditors was so small as to provide no practical advantage to some creditors, creditors did not have all relevant information (real estate appraisals) when voting, and the proposal conferred an element of preference to the secured creditor, so approval was not appropriate.
3 Sept 2012

A LIGUORI V GOLDEN FUND LIMITED& ORS, HC AK CIV 2011-404-004878

Citation

openlaw-4a0de4f9_f89a_43f6_a9f1_06d40f60216c.pdf
Court

High Court

The Court refused to apply issue estoppel because the amended proposal materially changed the commercial risk profile (no borrowing, underwriting by a major creditor). On independent assessment under s333 the revised proposal, although risky, could be acceptable to a commercially prudent creditor given the underwriting and proposed accountant oversight; public interest concerns were substantially reduced by the underwriting. Approval granted subject to strict conditions (trustee report on revenue after 20 working days; confirmation of GST filings; engagement of chartered accountant as co‑sign…
17 Dec 2010

THOMAS V TRUSTEES EXECUTORS LTD HC AK CIV-2010-404-1514

Citation

openlaw-1beeb11a_ab87_43dc_9284_5865aaa53c59.pdf
Court

High Court

After independent assessment of the s333(3) factors the court found Part 5 Subpart 2 had been complied with, the terms of the proposal were reasonable and calculated to benefit the general body of creditors (creditors would fare better than in bankruptcy), and the expediency ground was not made out (no gross misconduct); accordingly the proposal was approved and the adjudication application dismissed.
2 Nov 2010

VISKOVICH HC AK CIV 2010-404-004157

Citation

openlaw-c88d3de1_87c6_41bd_aa79_f46eaad980dc.pdf
Court

High Court

The Court approved the proposal because the statutory requirements under the Insolvency Act 2006 were satisfied, the proposal was accepted by the requisite number and value of creditors, the post‑vote modifications related only to one creditor and did not prejudice others, the proposal delivers materially greater returns to creditors ($150,000 over three years) than likely bankruptcy realisations ($9,450), and proper provision was made for preferential debts and trustee fees.
19 May 2010

BANK OF NEW ZEALAND LIMITED AND ORS V PG SOUTHAM HC AK CIV-2010-404-1509

Citation

openlaw-e19b75a9_d05a_4f37_b349_1a1dfd9ea45e.pdf
Court

High Court

The court approved the proposal because Sub‑Part 2 procedural requirements were met, a substantial majority of creditors voted in favour, the proposal is reasonable and calculated to benefit the general body of creditors (providing a materially better recovery than bankruptcy), and the s333(4) requirements regarding priority payments and costs have been satisfied; accordingly it is expedient to approve under s333.
16 Mar 2010

MARSH V COMMONWEALTH BANK OF AUSTRALIA, NEW ZEALAND BRANCH (ABN 123 123 124) HC AK CIV2009-404-3336

Citation

openlaw-894922dd_34b4_4795_bcb5_b54d929a8fa7.pdf
Court

High Court

Although the proposals met procedural voting requirements and were not unreasonable under s333(3)(b), the Court refused approval under s333(3)(c) because the insolvents' conduct (frustration of security realisation), lack of candour, failure to explain massive losses and the proposals' structure excluding income from secured‑creditor dealings from distributable funds created a real public‑interest risk they would evade bankruptcy consequences and capture substantial benefits to the detriment of creditors and the integrity of the insolvency regime.

New Zealand Case Law

WANG v GALLOWAY PROPERTIES LIMITED [2018] NZHC 284

STEVEN JAMES TOMPSON AND KAREN MICHELLE TOMPSON v GUY MARSHALL DISTON [2015] NZHC 2050

A LIGUORI V GOLDEN FUND LIMITED& ORS, HC AK CIV 2011-404-004878

THOMAS V TRUSTEES EXECUTORS LTD HC AK CIV-2010-404-1514

VISKOVICH HC AK CIV 2010-404-004157

BANK OF NEW ZEALAND LIMITED AND ORS V PG SOUTHAM HC AK CIV-2010-404-1509

MARSH V COMMONWEALTH BANK OF AUSTRALIA, NEW ZEALAND BRANCH (ABN 123 123 124) HC AK CIV2009-404-3336