Amfl Limited v O'Connell

[2020] NZHC 54

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000699

[2020] NZHC 54

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of JOSEPH THOMAS O’CONNELL

BETWEEN

AMFL LIMITED

Judgment Creditor

AND

JOSEPH THOMAS O’CONNELL

Judgment Debtor

Hearing:	Determined on the papers
Counsel:	D S Maclaurin for Judgment Creditor
Judgment:	3 February 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 February 2020 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

AMFL LTD v O’CONNELL [2020] NZHC 54 [3 February 2020]

[1]    The judgment creditor has filed bankruptcy proceedings against the judgment debtor in respect of a judgment obtained in the District Court at Christchurch on      8 November 2019 for $20,983.22.

[2]    A Bankruptcy Notice has been issued on the request of the judgment creditor in respect of the judgment debt but attempts at personal service of the Bankruptcy Notice upon the judgment debtor have not been successful.

[3]    The judgment creditor has applied for orders dispensing with personal service and authorising substituted service upon the judgment debtor of the Bankruptcy Notice and any further documents in the proceeding.

[4]    The application is made in reliance upon r 6.8 High Court Rules 2016. It has been made on a Without Notice basis. This is obviously because requiring service of the application upon the judgment debtor would defeat the purpose of the application and cause undue delay and prejudice to the judgment creditor.1

[5]Rule 6.8 provides:

6.8      Substituted service

(1)If reasonable efforts have been made to serve a document by a method permitted or required under these rules, and either the document has come to the knowledge of the person to be served or it cannot be promptly served, the court may—

(a)direct—

(i)that instead of service, specified steps be taken that are likely to bring the document to the notice of the person to be served; and

(ii)that the document be treated as served on the happening of a specified event, or on the expiry of a specified time:

(b)when steps have been taken for the purpose of bringing, or which have a tendency to bring, the document to the notice of the person on whom it is required to be served, direct that the document be treated as served on that person on a specified date:

1      High Court Rules 2016, r 7.46(3)(a).

(c)subject to any conditions that the court thinks just to impose, dispense with service of a document on a person and give to the party by whom the document is required to be served leave to proceed as if the document had been served.

(2)If a direction is given under subclause (1)(a) in respect of a document, the document must be treated as having been served at the place—

(a)at which the document is likely to have come to the notice of the person to be served; or

(b)where that person was or is likely to have been on the happening of the event or the expiry of the time specified under subclause (1)(a)(ii).

[6]    The     evidence     before     me     is     contained     in     an     affidavit     of Justin Andrew Cunningham and the evidence satisfies me as follows:

(a)the judgment debtor was, until recently, residing at a Christchurch address at which the judgment creditor’s representative had met with him at various times. The judgment debtor has now left that address without providing the judgment creditor with an alternative residential address;

(b)the judgment creditor is unaware of where the judgment debtor presently resides;

(c)the judgment creditor does not know where the judgment debtor currently works, although knows that he was previously employed by a company associated with his accountant, Mr Murray Allott, and there are Companies Office records produced confirming this;

(d)the judgment creditor’s representative has been in contact with the judgment debtor by email and telephone on numerous occasions;

(e)the judgment debtor is aware that the judgment creditor is taking bankruptcy proceedings against him and has been provided by email with a copy of the Bankruptcy Notice;

(f)the judgment creditor has by email requested the judgment debtor to provide his residential address on a number of occasions and, although the judgment debtor has responded to those emails he has always failed to provide any address;

(g)the judgment debtor has acknowledged his indebtedness and has indicated that he intends to pay the debt. He has made numerous promises to pay but has never done so;

(h)the judgment creditor cannot effect personal service of the Bankruptcy Notice upon the judgment debtor;

(i)the Bankruptcy Notice cannot be served promptly upon the judgment debtor.

[7]    In these circumstances, the requirements of r 6.8 are met and it is appropriate that I dispense with personal service and order substituted service of the Bankruptcy Notice upon the judgment debtor.

[8]    The judgment creditor wishes to effect substituted service by email and notify the judgment debtor by text to his cellular telephone that the documents have been served by email. The evidence satisfies me that this will bring the documents to the judgment debtor’s attention as both the email address and telephone number provided are presently used by the judgment debtor and he has responded to communications to them.

[9]    The judgment creditor also seeks an order that any requirement for personal service of further documents in this proceeding be dispensed with and served upon the judgment debtor in the same manner as the Bankruptcy Notice. No purpose will be served in requiring the judgment creditor to make further attempts to serve the judgment debtor when to date he has not co-operated in providing a residential address and is unlikely to do so in future. It is appropriate that the orders sought are made.

Result

[10]The orders that I make are as follows:

(a)Personal service of the Bankruptcy Notice dated 17 December 2019 on the judgment debtor is dispensed with;

(b)Service of the Bankruptcy Notice is to be effected by:

(i)emailing a copy of the Bankruptcy Notice and the sealed order for substituted service to the judgment debtor’s email address (being the address that is referred to in the draft order filed with the court); and

(ii)sending a text message to the judgment debtor to his cellular telephone number (being the number referred to in the draft order filed with the court) notifying him that the Bankruptcy Notice and the sealed order for substituted service have been sent to his email address.

(c)Service of the Bankruptcy Notice shall be deemed to be effected three working days after completion of the steps specified in paragraph 10(b);

(d)Any requirement for personal service of any further documents on the judgment debtor in this proceeding is dispensed with and service of such further documents shall be effected in the same manner as service of the Bankruptcy Notice described in paragraphs 10(b) and (c).

[11]The costs of this application are reserved.

[12]   I reserve leave for the judgment creditor to apply for such further directions as may be required.

[13]   I reserve leave also for the judgment debtor to apply to vary the orders made in paragraph 10(d) on five working days’ working notice to the judgment creditor.

O G Paulsen Associate Judge

Solicitors:
Mobile Legal Services, Christchurch

Copy to:
David Maclaurin, Barrister, Christchurch