Fletcher Distribution Limited T/A Placemakers Hornby v Fernando

[2022] NZHC 1579

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-17

[2022] NZHC 1579

UNDER

the Insolvency Act 2006

IN THE MATTER

the bankruptcy of JOHN WINSTON LAKSHAN FERNANDO

BETWEEN

FLETCHER DISTRIBUTION LIMITED T/A PLACEMAKERS HORNBY

Judgment Creditor

AND

JOHN WINSTON LAKESHAN FERNANDO

Judgment Debtor

Hearing:	(Determined on the papers)
Counsel:	M J Robinson for Judgment Creditor
Judgment:	5 July 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Substituted Service)

FLETCHER DISTRIBUTION LIMITED T/A PLACEMAKERS HORNBY v FERNANDO [2022] NZHC 1579 [5 July 2022]

[1]                 The plaintiff seeks an order for substituted service of the bankruptcy notice it has obtained against the judgment debtor, Mr John Fernando.

[2]                 I am satisfied reasonable efforts have been taken to complete personal service and that the bankruptcy document cannot be promptly served.

[3]                 The judgment creditor seeks an order that the papers be served on an adult at an address in Halswell, Christchurch set out in the application dated 20 June 2022, and if no one is present at that address, that the papers be affixed to the front door of the address.

[4]                 That application is made in part because of text message exchanges between the process servers engaged on behalf of the judgment creditor and Mr Fernando.

[5]                 Following attempts at personal service and text exchanges attempting to arrange a meeting time with Mr Fernando, the judgment debtor replied that “the papers can be dropped off with his office lady on Wednesday”. Mr Fernando went so far as to advise the days and times that his administration staff worked, that is, Wednesday to Friday 9:00am – 3:00pm.

Orders

[6]I direct:

(a)personal service of the judgment debtor with the bankruptcy notice is dispensed with;

(b)service upon the judgment debtor with the bankruptcy notice will be deemed to be effected upon the completion of the following:

(i)the bankruptcy notice together with a copy of this order are left with an adult occupant at the Halswell, Christchurch address as set out in the application dated 20 June 2022, provided that the attempt at service is to be completed between Wednesday and

Friday at 9:00am – 3:00pm. If no adult occupant is present at that time then the bankruptcy notice and a copy of this order may be affixed to the front door at the abovementioned address in Halswell, Christchurch, marked for the attention of the judgment debtor;

(ii)the bankruptcy notice and a copy of this order are to be sent to the judgment debtor’s mobile telephone given in the application dated 20 June 2022.

[7]                 The documents will be treated as served two working days after completion of both steps in the previous direction.

[8]                 This application is adjourned with leave to the judgment creditor to request, by memorandum, a further order as to substituted service in the event any adjudication application cannot be promptly served (in which event the memorandum should contain counsel’s confirmation either the judgment debtor can still not be located or attaching evidence as to subsequent difficulties of service).

[9]                 The costs of the application are fixed on a 2B basis and are, with disbursements, to be costs in the cause.

[10]             This order may be sealed upon the judgment creditor providing the full certificate that is required to accompany a without notice application. That certificate being found at the conclusion of Form G32 to the High Court Rules 2016. Counsel’s full certificate may be provided by memorandum at the same time as the order is tendered for sealing.

Associate Judge Lester

Solicitors:

Turner Hopkins, Auckland (for the Judgment Creditor)