Fletcher Distribution Limited t/a Placemakers Hornby v Rogers
[2022] NZHC 1445
•20 June 2022
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CIV-2021-476-000004
[2022] NZHC 1445
UNDER the Insolvency Act 2006 IN THE MATTER
of the bankruptcy of KIMBERLEY JEAN ROGERS
BETWEEN
FLETCHER DISTRIBUTION LIMITED
trading as PLACEMAKERS HORNBY Judgment Creditor
AND
KIMBERLEY JEAN ROGERS
Judgment Debtor
Hearing: On the papers Counsel:
M J Robinson for Judgment Creditor
Judgment:
20 June 2022
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 20 June 2022 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
FLETCHER DISTRIBUTION LTD v ROGERS [2022] NZHC 1445 [20 June 2022]
[1] The judgment creditor has issued bankruptcy proceedings against the judgment debtor. The application before me seeks an order for substituted service of the creditor’s application and summons to debtor by leaving the documents with an adult at an address at Clandeboye, Temuka (the Temuka property) or affixing them to the door of the premises there.
[2]The application is made in reliance on r 6.8 of the High Court rules.
[3]The position is as follows:
(a)The judgment creditor obtained the issue of a bankruptcy notice from the Court on 15 March 2021 in respect of a judgment it obtained in the District Court on 30 November 2020.
(b)The bankruptcy notice was served personally upon the judgment debtor at the Temuka property on 15 May 2021.
(c)The judgment creditor filed its creditor’s application for an adjudication order on 16 August 2021.
(d)It was not until 12 October 2021 that attempts were made to serve the judgment debtor at the Temuka property. Several attempts at service were made between 12 October 2021 and 13 December 2021, but they were unsuccessful.
(e)Since 13 December 2021 no further attempts have been made to serve the judgment debtor.
(f)The creditor’s application has been listed to come before the Court on several occasions and has been adjourned to allow further attempts at service and, then, for application for substituted service to be made.
(g)When the application for substituted service was first presented to me, I issued a minute to counsel that before substituted service would be ordered I needed to be satisfied that the requirements of r 6.8 were met.
I advised I could not be so satisfied unless there was evidence of recent attempts at service and an explanation for an almost six-month delay in applying for substituted service.
(h)Counsel has now filed a memorandum advising that no attempts have been made to serve the judgment debtor since 13 December 2021 but that the judgment creditor has no reason to believe additional attempts at service will be successful.
[4] To obtain an order for substituted service of a document it is generally necessary to show:1
(a)that reasonable efforts have been made to serve the document;
(b)that either the document cannot be promptly served, or it 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.
[5] The Courts have stressed that given the consequences of the making of an adjudication order, which alters the status of the debtor as well as limiting the rights of creditors, applications for substituted service of bankruptcy proceedings must be scrutinised carefully.2
[6] In my view, I am not in a position to make an order for substituted service on what is before me. There is no evidence the judgment creditor or its solicitors have had any contact with the judgment debtor since the bankruptcy notice was served over a year ago. The judgment creditor was able to personally serve the bankruptcy notice upon the judgment debtor and there does not seem to be any basis for the suggestion that further attempts at service will be unsuccessful. While some attempts at service have been made, there have been no such attempts for over six months. There is also
1 Heartland Bank Ltd v Wilfred [2022] NZHC 1328.
2 Re Rewiri ex parte Commissioner of Inland Revenue HC Whangarei, B32/02, 1 August 2002.
no evidence that the judgment debtor still resides at the Temuka property so I cannot be satisfied that any of the proposed methods of service are likely to bring the creditor’s application to her notice.
[7] In these circumstances, I make no decision on the application for substituted service until at least a further attempt at service of the creditor’s application has been made and there is evidence that the proposed method of effecting substituted service will likely bring documents to the judgment debtor’s attention.
Result
[8] The application for substituted service will be adjourned pending receipt of further evidence from the judgment creditor.
O G Paulsen Associate Judge
Solicitors:
Turner Hopkins, Auckland
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