Gold Band Finance Limited v Allan

[2021] NZHC 252

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000527

[2021] NZHC 252

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Damian Uriah Allan

BETWEEN

GOLD BAND FINANCE LIMITED

Judgment Creditor

AND

DAMIAN URIAH ALLAN

Judgment Debtor

Hearing:	On the papers
Counsel:	C T Jolliffe for Judgment Creditor
Judgment:	23 February 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 23 February 2021 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GOLD BAND FINANCE LTD v ALLAN [2021] NZHC 252 [23 February 2021]

[1]    The judgment creditor has filed a creditor’s application for an adjudication order against the judgment debtor.

[2]    The judgment creditor applies for an order dispensing with personal service of the creditor’s application, summons to debtor and accompanying verifying affidavit (the service documents) and authorising substituted service of them upon the judgment debtor by advertising in:

(a)one Saturday edition of the New Zealand Herald; and

(b)one Saturday edition of the Christchurch Press.

[3]    This application is made on reliance upon r 6.8 High Court Rules 2016. It has been made on a without notice basis, which is appropriate. To require service upon the judgment debtor would defeat the purpose of the application.1

[4]Rule 6.8 provides:

6.8Substituted 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.

1      High Court Rules 2016, r 7.46(3)(a).

(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 background to this application is as follows:

(a)The judgment upon which the creditor’s application is based was obtained by the judgment creditor in the District Court at Christchurch on 24 September 2020.

(b)The judgment creditor was unable to serve the District Court proceedings and obtained an order for substituted service of them upon the judgment debtor.

(c)After obtaining judgment, the judgment creditor issued a bankruptcy notice against the judgment debtor on 28 October 2020. Having made reasonable attempts to effect personal service of the bankruptcy notice without success, the judgment creditor applied for an order for substituted service of the bankruptcy notice upon the judgment debtor.

(d)An order for substituted service of the bankruptcy notice was made on

21  December  2020.     It provided for substituted service of the bankruptcy notice as follows:

(i)by publication of a notice to the judgment debtor in one Saturday edition of the New Zealand Herald; and

(ii)by sending a text message to the judgment debtor’s cellphone number advising him a bankruptcy notice had been issued against him, requiring payment of the judgment sum and costs within 10 days, the Court file number and, contact details where

the judgment debtor could obtain a copy of the bankruptcy notice.

[6]    The evidence in support of the application for substituted service of the bankruptcy notice included that:

(a)the judgment creditor had made reasonable attempts but was unable to serve the judgment debtor;

(b)the judgment creditor’s agent had tried to call and text the judgment debtor’s cellphone number but there was no answer;

(c)the judgment creditor’s agent had spoken to the judgment debtor on 30 November 2020 and the judgment debtor agreed to arrange a time to accept service of the bankruptcy notice but did not do so;

(d)the judgment creditor’s agent then attempted to call and text the judgment debtor again on three occasions without success; and

(e)despite enquiries the judgment creditor was unable to obtain any further information about the judgment debtor’s whereabouts and believed the judgment debtor was actively evading service.

[7]    Substituted service of the bankruptcy notice was effected in accordance with the Court’s order on 16 January 2021.

[8]The judgment debtor has not responded to the bankruptcy notice.

[9]    Since service of the bankruptcy notice, the judgment creditor has taken the following further steps to try to locate the judgment debtor:

(a)instructed its process server agent to make enquiries and serve the service documents;

(b)the judgment creditor’s agent sent a text message to the judgment debtor’s cell phone number to identify his whereabouts and arrange for service. A response was  received  from  the  cellphone  number  on 15 February 2021 that the cellphone was no longer owned by the judgment debtor but the judgment debtor was in Auckland.

[10]   The text message received from what was the judgment debtor’s cellphone number is suspicious. If the cellphone does not belong to the judgment debtor and has been allocated by the service provider to another customer, how would that customer know the judgment debtor is in Auckland? The response suggests the cellphone number is still used by the judgment debtor or by some person in contact with him or with knowledge of his whereabouts.

[11]   The judgment creditor has not been able to obtain any further information about the judgment debtor’s whereabouts.

[12]   Given the long background of this matter, including two previous orders being made by the Court for substituted service of documents upon the judgment debtor, I am satisfied that the judgment creditor has made reasonable efforts to serve the service documents and has been unable to effect personal service. I believe, also, that advertising the service documents in the manner sought is the best means to bring them to the judgment debtor’s attention. To cover the possibility that the judgment debtor is still using the same cellphone number or, that it is now owned by someone who has the means to contact him, I am also going to direct that a further text message be sent to that number.

Result

[13]The orders I make are as follows:

(a)personal service of the service documents upon the judgment debtor is dispensed with;

(b)substituted service of the service documents is to be effected by:

(1)            advertising the creditor’s application in the form attached to the judgment creditor’s application and marked “A” in:

(i)a Saturday edition of the New Zealand Herald newspaper;

(ii)a Saturday edition of the Christchurch Press newspaper;

(2)            sending a text message to the judgment debtor’s last-known cellphone number advising as follows:

We act for Gold Band Finance Ltd. We have been instructed by the High Court at Christchurch to send this text message to you to notify Mr Damian Uriah Allan that our client has issued a creditor’s application for an  order  adjudicating Mr Allan bankrupt. The application will be heard in the High Court at Christchurch at 10am on 25 March 2021. The Court number for this application is CIV-2020-409-527. Mr Allan should contact Chloe Jolliffe of Anthony Harper (at 03 379 0920 or [email protected]) or the High Court at Christchurch to obtain a copy of the creditor’s application. Any person knowing the whereabouts of the above-named Damian Uriah Allan is to bring the content of this text message to his attention.

[14]The costs of this application are reserved.

O G Paulsen Associate Judge

Solicitors:

Anthony Harper, Christchurch