Corner Trading Limited v Thompson
[2024] NZHC 3272
•7 November 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2024-425-027
[2024] NZHC 3272
UNDER the Insolvency Act 2006 IN THE MATTER
of the bankruptcy of JAMIE THOMPSON
BETWEEN
CORNER TRADING LIMITED
Judgment Creditor
AND
JAMIE THOMPSON
Judgment Debtor
Hearing: On the papers Counsel:
C J Shannon and M Hamid for Judgment Creditor
Judgment:
7 November 2024
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 7 November 2024 at 2.15 pm pursuant to rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
CORNER TRADING LIMITED v THOMPSON [2024] NZHC 3272 [7 November 2024]
[1] The judgment creditor obtained a judgment against the judgment debtor, Jamie Thompson, in the District Court at Invercargill and now wishes to obtain an order adjudicating Mr Thompson bankrupt.
[2] The judgment creditor applied for and obtained the issue of a bankruptcy notice from this Court but has been unable to personally serve the bankruptcy notice upon Mr Thompson. It now applies for an order that the bankruptcy notice be served upon Mr Thompson by way of email, with confirmation of service to be provided to Mr Thompson by way of text message.
[3] In the usual course a bankruptcy notice must be served personally on a judgment debtor. However, r 6.8 of the High Court Rules 2016 provides for substituted service in the following terms:
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] To obtain an order for substituted service an applicant will generally be required to show:
(a)that reasonable efforts have been made to serve a document;
(b)the document cannot promptly be served or has come to the knowledge of the person to be served; and
(c)that the proposed method of substituted service would be likely to bring the document to the notice of the person to be served.
Reasonable efforts to serve
[5] Mr Thompson’s exact whereabouts are unknown. I am satisfied that reasonable enquiries have been made to locate Mr Thompson so as to effect personal service of the bankruptcy notice upon him. He has been contacted by the creditor’s process server and it is understood he has relocated to the North Island but he has not provided a current address. Mr Thompson also indicated there was the possibility he would collect the bankruptcy notice in person, but he did not subsequently make any arrangements to do so. Searches made of social media have also failed to locate him.
[6] There has been email correspondence between the judgment creditor’s solicitors and Mr Thompson where he has been invited to make arrangements for service of the bankruptcy notice but has not done so.
Documents cannot be promptly served
[7] I am satisfied that in the absence of cooperation from Mr Thompson the bankruptcy notice cannot be promptly served.
Would service in the manner proposed bring the bankruptcy notice to Mr Thompson’s attention?
[8] Mr Thompson’s email address is known, and he receives and sends emails from that address. I am satisfied the bankruptcy notice will come to his attention if it is served by email. I note there is the additional step to be taken of advising him that service has been effected by sending a text to his cell phone, which I am satisfied is operational.
[9] It is therefore appropriate in these circumstances for an order for substituted service to be made.
Result
[10] I dispense with personal service of the bankruptcy notice upon Mr Thompson and direct substituted service of the bankruptcy notice upon him in the following manner:
(a)by emailing a copy of the bankruptcy notice and the sealed order for substituted service to him at the email address referred to in paragraph
1.2.1 of the interlocutory application of 4 November 2024; and
(b)by sending a text message to Mr Thompson’s mobile phone number (referred to in paragraph 1.2.2 of the interlocutory application) confirming that service of the bankruptcy notice has been effected in terms of this order.
[11] Service of the bankruptcy notice shall be deemed to be effected one working day following completion of the steps in [10] above.
[12] In relation to other documents that may have to be served upon Mr Thompson in the event he fails to comply with the bankruptcy notice, I am not prepared at this stage to make an order for substituted service of such documents. I reserve leave to the judgment creditor to apply for substituted service of further documents by way of memorandum. The judgment creditor will need to provide details of any
communications with Mr Thompson, steps taken to locate him, and any further information about his whereabouts.
[13]Costs on this application are reserved.
O G Paulsen Associate Judge
Solicitors:
Duncan Cotterill, Christchurch
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