Heartland Bank Limited v Moorcroft

[2021] NZHC 619

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2020-416-20

[2021] NZHC 619

UNDER

the High Court Rules 2016

IN THE MATTER

of a debt collection

BETWEEN

HEARTLAND BANK LIMITED

Plaintiff

AND

DEAN KARL MOORCROFT

First Defendant

AND

PROBUSH SERVICES LIMITED

Second Defendant

Hearing:	(Determined on the papers)
Counsel:	C R Vinnell for the Plaintiff
Judgment:	25 March 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(application for substituted service)

This judgment was delivered by me on 25 March 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 25 March 2021

HEARTLAND BANK LIMITED v MOORCROFT [2021] NZHC 619 [25 March 2021]

[1]                 Heartland Bank Limited (the Bank) seeks an order for substituted service against the first defendant, Dean Karl Moorcroft (Mr Moorcroft).

[2]                 Having regard to the evidence that has been produced, I am satisfied that reasonable efforts have been made  to  serve  the  summary  judgment  papers  on  Mr Moorcroft and that the papers cannot promptly be served.

[3]                 The Bank  has  been  unable  to  locate  a  current  residential  address  for  Mr Moorcroft, the evidence being that he may be living in a caravan associated with a job he may have, but even that cannot be confirmed.

[4]                 The process server engaged by the Bank’s counsel has ascertained a cellphone number for Mr Moorcroft and has confirmed that on 4 February 2021 Mr Moorcroft was able to be contacted on his cellphone.  At that time the agent sought to arrange   a place and time to meet to serve the documents. While Mr Moorcroft apparently indicated he would contact the agent to set up a time and place to meet, no further contact has been received from Mr Moorcroft and he now ignores telephone calls from the agent.

[5]                 The documents that this application concerns are: the statement of claim dated 11 December 2020, notice of proceeding dated 16 December 2020, interlocutory application seeking summary judgment dated 16 December 2020, and an affidavit of Benjamin Daniel Gillies in support of the plaintiff’s claim for summary judgment, sworn 11 December 2020 (“the Documents”).

Orders

[6]I direct:

(1)Personal service on Mr Moorcroft of the Documents is dispensed with.

(2)Service upon Mr Moorcroft will be deemed to be effected upon the completion of the following three events:

(a)sending a copy of the Order for substituted service and the Documents to the email address set out  at  para  [1.1](a) of  the application for substituted service dated 22 March 2021;

(b)sending a text message to Mr Moorcroft’s cellphone number set out at para [1.1](b) of the application for substituted service dated 22 March 2021. The text message to read:

We act for Heartland Bank Ltd. We have important Court documents for service on you. Please contact Crispin Vinnell of Anthony Harper on 03 364 3814 or [email protected] to obtain copies of the Documents. If you fail to contact Crispin Vinnell by [counsel to insert date three working days after the date of the text] you will be deemed to have received the Court Documents and the Court may proceed to enter judgment against you.

(c)and a text message to be sent to Mr Moorcroft’s brother as follows:

The Court has requested that you advise Dean Moorcroft to check his email and his cellphone number in respect of a claim by Heartland Bank Ltd.

[7]                  The Documents will be treated as served three working days after completion of the three steps in [6] above.

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

[9]                 Counsel will note the text at 2(b) differs slightly from that suggested in the application.   Also,  I have added the requirement of a text message to  be sent to   Mr Moorcroft’s brother as a report from the process server said the cellphone number of Mr Moorcroft’s brother had been obtained, albeit the agent was of the view that Mr Moorcroft’s family were protecting him.

Associate Judge Lester

Solicitors:
Anthony Harper, Christchurch