ASB Bank Limited v Johnston

[2020] NZHC 3131

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000108

[2020] NZHC 3131

BETWEEN

ASB BANK LIMITED

Applicant

AND

GRAHAM JOHN JOHNSTON

Respondent

Hearing:	Determined on the papers
Counsel:	S C D A Gollin and E Johnson for Applicant
Judgment:	26 November 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 November 2020 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ASB BANK LTD v JOHNSTON [2020] NZHC 3131 [26 November 2020]

[1]The applicant (ASB) applies for orders:

(a)dispensing with personal service of a notice under s 119 Property Law Act 2007 (the Notice) on the respondent (Mr Johnston); and

(b)that service of the Notice be effected in the manner set out in [10] below.

[2]        On  29  September  2015,  ASB  entered  into  a  facility   agreement   with Mr Johnston pursuant to which monies and obligations owed by Mr Johnston were secured by way of mortgage over a property at 521 George Street, North Dunedin, Dunedin (the property). Mr Johnston defaulted under the terms of the facility agreement and ASB as mortgagee wishes to sell the property. Before doing so it must serve the Notice upon Mr Johnston.

[3]ASB has contact information for Mr Johnston, namely:

(a)a cell phone number;

(b)an email address;

(c)a postal address; and

(d)the address of the property.

[4]        A process server was directed to personally serve the Notice on Mr Johnston at the property. Several attempts were made but they were all unsuccessful. The process server has left business cards at the property asking Mr Johnston to contact him but neither he nor anyone else living there has done so. The process server has spoken to Mr Johnston’s former wife and she advises that he moved to Australia some time ago but provided no further information as to his whereabouts.

[5]        Attempts to make contact with Mr Johnston through his contact telephone number (an Australian number) and by email have similarly proved unsuccessful.

[6]        Searches  of  Facebook  have  not  identified  any  account  belonging  to    Mr Johnston, through which he might be contacted.

[7]        ASB has reviewed its files but has no other contact details for Mr Johnston. The last contact with him was in July 2020 using his email address but, as noted above, emails recently sent to that address have not been responded to.

[8]        A notice under s 119 Property Law Act must be served in accordance with ss 353 and 359 of the Property Law Act. Under s 357, an order may be made dispensing with or directing another manner of service. Section 357 provides:

357 Orders dispensing with, or directing manner of, service

(1)In any case referred to in sections 353 to 355, ---

(a)a court may, on an application for the purpose, make an order -

(i)      dispensing with service; or

(ii)     directing that a notice, cross-notice, or other document is to be given or served in a manner other than that provided for in any of those sections or in any instrument; and

(b)if the court makes an order under paragraph (a)(ii), the notice, cross-notice, or other document is adequately given or served if it is given or served in accordance with the order.

(2)This section overrides sections 353 to 355 and all other provisions of this Act, and applies despite anything to the contrary in ---

(a)any other enactment; or

(b)any instrument or agreement.

[9]        I am satisfied that reasonable attempts have been made to attempt personal service upon Mr Johnston. ASB has attempted several different methods to make contact with Mr Johnston all which have proven unsuccessful. It appears Mr Johnston no longer lives at the property and is Australia. It would be futile for ASB to make further attempts at personal service. It is appropriate that an order be made dispensing with personal service and directing some alternative means of service which will likely bring the Notice to his attention.

[10]      ASB  proposes a suite of steps that will  be taken to bring the Notice to      Mr Johnson’s attention. These include:

(a)Sending the Notice and the Court’s sealed order for substituted service (the order) to his email address;

(b)Delivering the Notice and order along with a request to bring it to    Mr Johnston’s attention to the address where his former wife is living;

(c)Sending the Notice and the order to Mr Johnston’s last known postal address;

(d)Affixing the Notice and the order to an outside door of the property; and

(e)Sending a text to Mr Johnston advising him that service of the Notice and the order have been effected in the manners set out in (a) to (d) above.

[11]      I cannot see what more ASB could reasonably do to bring the Notice to     Mr Johnston’s attention.

[12]      It is appropriate to make orders in terms of the application save in one respect. ASB has also sought an order that any future Property Law Act notice be served upon Mr Johnston in the same manner as above. There may be a change in circumstances making such an order inappropriate. I do not make it.

Result

[13]      There shall be orders in terms of paragraphs 1(a), (b), (c) and (f) of the application.

[14]I reserve leave to apply.

O G Paulsen Associate Judge

Solicitors:

Minter Ellison Rudd Watts, Auckland