COETZEE & ANOR V COLLECTION HOUSE (NZ) LIMITED & ORS HC AK CIV 2009-404-002090 [2009] NZHC 619 (26 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CIV 2009-404-002090

               UNDER                        The Insolvency Act 2006


               BETWEEN                      MATHYS JOHANNES
COETZEE AND
                                            MARYNA ELISE COETZEE
                                            Insolvents

               AND                          COLLECTION HOUSE (NZ) LIMITED,
                                            ALLIED NATIONWIDE
FINANCE,
                                            AMERICAN EXPRESS INTERNATIONAL
                                            (NZ)
INC, BAYCORP NZ LIMITED, FAI
                                            FINANCE LIMITED, GENERAL
                              
             ELECTRIC INTERNATIONAL INC trading
                                            as GE MONEY NEW ZEALAND,
           
                                INTERNATIONAL ACCEPTANCE (NZ)
                                            LIMITED, RECEIVABLES
 
                                          MANAGEMENT (NZ) LIMITED,
                                            TOYOTA FINANCE NEW
ZEALAND
                                            LIMITED, CREDIT CONSULTANTS
                                            LIMITED
and CONSUMER FINANCE
                                            LIMITED trading as Q CARD
                                     
      Creditors


Counsel:       A Nicholls for applicant/trustee

Judgment:      26 May 2009


            ORAL JUDGMENT OF ASSOCIATE
JUDGE ABBOTT




Solicitors:
Metro Law, PO Box 68882, Newton, Auckland


COETZEE & ANOR V COLLECTION HOUSE (NZ) LIMITED & ORS HC
AK CIV 2009-404-002090 26
May 2009
[1]     Christine Liggins has applied, as trustee of the insolvents M J and M E
Coetzee for Court
approval of a proposal made by Mr and Mrs Coetzee to their
creditors pursuant to Part 5 of the Insolvency Act 2006.


[2]     Mr
and Mrs Coetzee filed their proposal on 9 April 2009, naming Ms Liggins
as trustee (her consent was endorsed on the proposal).


[3]     The statement of affairs accompanying the proposal showed that Mr and Mrs
Coetzee, between them, had unsecured debts totalling
$17,322 and secured debts
totalling $45,321. They declared that they had total assets (a small credit balance in
a bank account,
furniture and personal effects) totalling $3,020.


[4]     Ms Liggins has filed a report dated 1 May 2009 stating that:


     
  a)      Notice of the proposal was sent to every known creditor on 17 April
                2009, together with notice of a meeting
to be held on 29 April 2009 to
                consider the proposal;


        b)      The creditors were given a copy of the proposal,
the statement of
                assets and liabilities of Mr and Mrs Coetzee, a list of creditors
                affected by the
proposal (with details of amounts owed), and a form of
                proof of debt and voting letter; and


        c)      The
meeting was held on 29 April 2009 (with herself as chair). She
                has produced to the Court postal votes sent in by
all of the disclosed
                creditors, all voting in favour of accepting the proposal (including her
                appointment
as trustee).


[5]     The proposal is for all creditors to be paid by regular instalments of $810 per
fortnight over a three year
period, on condition that no goods over which the secured
creditors have security are repossessed, and Mr and Mrs Coetzee are not
declared
bankrupt, within the repayment period. The proposal would see all creditors being
paid in full.
[6]    Ms Liggins has applied
for approval of the proposal pursuant to s 333 of the
Insolvency Act 2006. There is no affidavit of service of this application on
the Court
file. It appears to have gone astray somewhere in the Court. Counsel for the trustee
has produced an office copy of an
affidavit dated 13 May 2009 in which Ms Liggins
states that notice of this hearing was sent to all creditors on 12 May 2009 by post to
their nominated post office box numbers
or private bag addresses. Counsel advises
that his file shows that the original of the affidavit was delivered to the Court on
14
May 2009 together with documents on other proposals. I can accept that it may
have been caught up with the other documents.     
    I am prepared to accept the
photocopy document as a true copy of the original, and to proceed on the basis that
the creditors
have been given proper notice.


[7]    I am satisfied from reading the proposal, the statement of affairs, and the
trustee's report
that the proposal for repayment of all debt in full over a three year
period is reasonable, and for the benefit of all creditors.
Clearly the unsecured
creditors would receive little or nothing if Mr and Mrs Coetzees were to be
adjudicated bankrupt at this point.


[8]    The only contrary matter of any note is that the secured and unsecured
creditors are being treated in the same manner, and
on terms which will prevent the
secured creditors from exercising their rights over their security during their
repayment period.
I am satisfied, however, that all of the secured creditors (or the
commercial agents representing them) are experienced in this field,
and can be taken
to understand the effect on them of the proposal, and to have accepted it with a
proper appreciation of that effect.
In those circumstances it is not for the Court to
question their decision.


[9]    There is a slight discrepancy in the reporting
of debts of two apparently
minor creditors. A postal vote in favour of the proposal has been signed on behalf of
these two creditors
in a sum of $1,236.32. The list of creditors annexed to the
statement of assets and liabilities appears to report these creditors
(by their debt
collection agent Receivables Management (NZ) Limited) at a different and
substantially lower value, and the trustee's
report records the debt at yet another
value. I am satisfied that the sum recorded in the postal vote was inadvertently that
of
another creditor, and that the sum in the trustee's report is the more accurate
figure. The debts are amongst the lowest, if not
the lowest, in the list of creditors. I
consider that the discrepancy between these figures does not alter the substance of
the proposal.
I will accept the figure reported by the trustees ($481.00) as the correct
figure for these two creditors. It is not a matter which
justifies refusal of what is
otherwise an appropriate application.


[10]   I make an order approving the proposal pursuant to s
333 of the Insolvency
Act 2006.




                                                             ____________________
          
                                                  Associate Judge Abbott