11 December 2015

Insolvency: Horton v. McKillen

Creditors successfully challenged a part-payment scheme put up by Shane McKillen, claiming to be broke after the failure of drinks company VnC Cocktails.  Creditors will require a better offer, or he faces bankruptcy.
The High Court refused approval to a scheme offering creditors three cents in the dollar saying that related party family debts totalling more then $23 million should not have been counted in votes approving the scheme and that Mr McKillen should not be able to hide behind family trusts while offering up a minimal return to unpaid creditors.
Personal creditors of Mr McKillen challenged an Insolvency Act part-payment scheme voted by creditors in February 2015.  Mr McKillen claims to have debts of $33.8 million and assets of only $107,500.  His company, VnC Cocktails Ltd, perished following a high profile push into the US market.
Two creditors challenged the 2015 part-payment scheme: Bank of New Zealand claiming $3.6 million and investor Audrey Investments Ltd claiming $2.4 million.  They said the proposal was pushed through with votes from related party debts; family trusts in which Mr McKillen was a discretionary beneficiary or from investment vehicles where he exercised indirect control.  These votes alone gave a voting majority of 73 per cent.  A 75 per cent majority is necessary to approve a part-payment scheme.
Evidence was given that Mr McKillen was offering creditors three cents in the dollar to be paid at the rate of one cent in the dollar each year over three years.  Only external creditors were to share in the payout; related party debts were to be written off. 
Associate judge Doogue ruled the bulk of the related party debt should have been excluded from voting.  This debt arose from personal guarantees given by Mr McKillen and there was no evidence the guarantees had been called up.  Judge Doogue further said he would have refused approval for the part-payment scheme in any event.  As a matter of commercial morality, creditors should not be forced into a part-payment scheme where a debtor creates a complex structure of family trusts providing no clarity as to financial resources available, he ruled.     
Horton v. McKillen – High Court (11.12.15)

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