Farmlands Co-Operative Society Limited v Dagg

[2021] NZHC 3222

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2021-476-000032

[2021] NZHC 3222

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Graham Dagg

BETWEEN

FARMLANDS CO-OPERATIVE SOCIETY LIMITED

Judgment Creditor

AND

GRAHAM DAGG

Judgment Debtor

Hearing:	On the papers
Counsel:	C L Houghton for Judgment Creditor
Judgment:	29 November 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 29 November 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FARMLANDS CO-OPERATIVE SOCIETY LTD v DAGG [2021] NZHC 3222 [29 November 2021]

[1]The judgment creditor obtained a judgment against the judgment debtor for

$24,862.16 in the Timaru District Court on 28 May 2021. It has successfully applied for the issue of a bankruptcy notice against the judgment debtor in respect of the judgment but has been unable to effect personal service upon him.

[2]        The judgment creditor applies for an order dispensing with personal service and authorising substituted service of the bankruptcy notice, along with any subsequent application and/or related documents required to be personally served on the judgment debtor in this proceeding, by leaving such documents with the occupant of, or affixed to the door of, the judgment debtor’s residence.

[3]        This application is made in reliance upon r 6.8 High Court Rules and has been made on a without notice basis. That is clearly appropriate as to require service upon the judgment debtor would defeat the purpose of the application itself.

[4]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).

[5]        The evidence before me is contained in an affidavit of Michael Hendrik Kruishoop and it satisfies me that:

(a)Mr Kruishoop is a process server at Timaru who has successfully served court documents on the judgment debtor previously, although this required a number of attempts and the judgment debtor is reluctant to accept service of court documents.

(b)He received instructions to serve the bankruptcy notice upon the judgment debtor on or around 5 August 2021.

(c)Due to COVID-19 restrictions he was unable to attempt service for some weeks.

(d)An unsuccessful attempt to serve the judgment debtor with the bankruptcy notice occurred on 18 September 2021 at a property known to have been a residence of the judgment debtor, but Mr Kruishoop found it to be vacant.

(e)Further enquiries were made that confirmed the judgment debtor had moved to another property in the Waimate area.

(f)Mr Kruishoop made unsuccessful attempts to serve the judgment debtor with the bankruptcy notice at that address on 29 September 2021 and again on 12 October 2021. He was able to confirm the judgment debtor is residing at the property and spoke to the judgment debtor’s wife. It is likely the judgment debtor is aware of attempts to serve him with the bankruptcy notice.

(g)The property where the judgment debtor now resides is a farm. It is a very large and remote property. Each attempt at service incurs significant costs. It is not reasonable in the circumstances for

Mr Kruishoop to attempt to locate the judgment debtor on the property other than at the residence. Leaving the bankruptcy notice at the residence is likely to bring it to the judgment debtor’s attention.

[6]        In these circumstances, I am satisfied 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. I consider that it is appropriate that substituted service of the bankruptcy notice be effected by leaving it with an occupant of, or affixed to the door of, the residence at the address identified in the notice of application.

[7]        I am not prepared to order substituted service of any subsequent applications or related documents upon the judgment debtor in the same manner. There may be a change of circumstances which makes such manner of service inappropriate. I will, however, reserve leave for the judgment creditor to apply for substituted service of any future documents by way of memorandum.

Result

[8]The orders I make are as follows:

(a)Personal service upon the judgment debtor of the bankruptcy notice issued in this proceeding is dispensed with.

(b)Service of the bankruptcy notice is to be effected by leaving the bankruptcy notice with an occupant of, or affixed to the door of, the residence at the address identified in para 1(b) of the notice of application.

(c)Service of the bankruptcy notice shall be deemed to have occurred two working days following completion of (b) above.

(d)Service of the bankruptcy notice is to be accompanied by the sealed order for substituted service.

(e)I reserve leave to the judgment creditor to apply for substituted service of any subsequent application and/or related documents required to be personally served on the judgment debtor in this proceeding by way of memorandum provided such memorandum includes the following information:

(i)details of any contact with the judgment debtor;

(ii)confirmation the judgment debtor continues to reside at the same property; and

(iii)any further contact details of the judgment debtor such as telephone or social media information.

[9]The costs of this application are reserved.

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

O G Paulsen Associate Judge

Solicitors:
Anderson Lloyd (C Houghton/R Woods), Christchurch