Blacks Fasteners Limited v Baxter

[2023] NZHC 60

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000400

[2023] NZHC 60

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Adam Baxter

BETWEEN

BLACKS FASTENERS LIMITED

Judgment Creditor

AND

ADAM BAXTER

Judgment Debtor

Hearing:	On the papers
Counsel:	G D Trainor for Applicant
Judgment:	2 February 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 2 February 2023 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BLACKS FASTENERS LTD v BAXTER [2023] NZHC 60 [2 February 2023]

[1]    The judgment creditor has made a creditor’s application for an order adjudicating the judgment debtor (Mr Baxter) bankrupt. Attempts to effect personal service of the creditor’s application  and  related  documents  (the  documents)  on Mr Baxter have proved unsuccessful. The judgment creditor applies for an order dispensing with personal service and authorising substituted service of the documents upon Mr Baxter.

[2]    The application is made in reliance upon r 6.8 High Court Rules 2016. It has been made on a without notice basis, which is appropriate, as to require personal service of this application on the judgment debtor would be futile and defeat the purpose of the application itself.

[3]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:

(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).

[4]The evidence filed in support of the application satisfies me of the following:

(a)The judgment creditor instructed a process server, Debra-Anne Nield, to serve the documents upon Mr Baxter.

(b)Mr Baxter is known to Ms Nield from the service of previous court documents and difficulties have been experienced arranging service upon Mr Baxter in the past.

(c)Following receipt of the documents, Ms Nield has attempted to serve Mr Baxter personally at his residential address but she has been unsuccessful. She has also spoken to Mr Baxter on his mobile phone so that he is aware that she wishes to serve the documents upon him and the nature of them. On one of those occasions Mr Baxter promised to make arrangements to meet with Ms Nield for service of the documents, but subsequently all calls to his mobile phone have been unanswered and were not returned.

(d)Ms Nield has also sent text messages to Mr Baxter which have not been responded to.

(e)In addition, an email was sent to Mr Baxter’s email address asking him to arrange a time and place to accept the documents, but this was also not responded to.

(f)Mr Baxter has been made aware that if he does not make arrangements to accept service of the documents, an application for substituted service would be made.

(g)Mr Baxter appears to be evading service of the documents and requiring the judgment creditor to make further attempts at personal service would serve no useful purpose.

[5]    The judgment creditor seeks orders that substituted service of the documents be effected by delivering them to Mr Baxter’s wife, or at their residence, by sending the documents to him by email and text message to his mobile phone. I am satisfied that if those steps are taken the documents will come to his attention.

Result

[6]I make the following orders:

(a)Personal service upon Mr Baxter of the following documents in this proceeding is dispensed with, namely:

(i)creditor’s application for an adjudication order;

(ii)summons to debtor;

(iii)verifying affidavit;

(iv)the sealed order on this application.

(b)Service of those documents in [6(a)] shall be effected by:

(i)leaving the documents with the judgment debtor’s wife, Gillian Baxter, at their residential address (as set out in the affidavit of Ms Nield) or if Mrs Baxter does not accept service of the documents, by leaving them in the letterbox of the residence; and

(ii)by forwarding copies of the documents as an attachment to an email sent to Mr Baxter at his email address (as set out in the affidavit of Ms Nield); and

(iii)by forwarding a text message to Mr Baxter at his mobile phone number (as set out in the affidavit of Ms Nield) which shall read as follows:

Blacks Fasteners Limited has issued proceedings against you in the High Court at Christchurch under CIV-2022-409-400 seeking an order adjudicating you bankrupt. The High Court has made orders dispensing with personal service of court documents relating to that application upon you and authorising substituted service of those documents. Substituted service of the documents has been effected by leaving them at your residential address on [date to be entered] and by sending them to your email address on [date to be entered]. Service of the documents upon you is deemed to have been completed on the day you are sent this text message, that is [date to be entered].

Black Fasteners Limited’s application to adjudicate you bankrupt will be called before the High Court at Christchurch at 10.00 am on Thursday 9 March 2023.

Blacks Fasteners Limited is represented by Gregory David Trainor of the law firm MacLean & Associates Lawyers,  PO Box 42-123, Christchurch, C/o Aorangi Credit Management (2016) Ltd, Phone: [phone]. Copies of the documents can be obtained from the solicitor or from the offices of the High Court at Christchurch.

[7]The costs of this application are reserved.

[8]    I also reserve leave for either party to apply for further directions as may be required.

O G Paulsen Associate Judge

Solicitors:
MacLean & Associates Lawyers, Christchurch