Hynds Pipe Systems Limited v Ord

[2020] NZHC 1920

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-498

[2020] NZHC 1920

UNDER

the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of Kyle Stephen Ord

BETWEEN

HYNDS PIPE SYSTEMS LIMITED

Judgment Creditor

AND

KYLE STEPHEN ORD

Judgment Debtor

Hearing:

On the papers

Counsel:

P A Sheat for Judgment Creditor

Mr K S Ord (self-represented) Judgment Debtor

Judgment:

3 August 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 3 August 2020 at 12.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 3 August 2020

HYNDS PIPE SYSTEMS LIMITED v ORD [2020] NZHC 1920 [3 August 2020]

[1]                 This application by the judgment creditor, Hynds Pipe Systems Ltd, to bankrupt the judgment debtor, Kyle Ord, was filed in November 2019.

[2]                 An affidavit of service was sworn by a process server on 21 January 2020, confirming that the application for adjudication, summons to judgment debtor and supporting   affidavit   were   served   personally   on   the   judgment   debtor   on   18 November 2019. The affidavit says the summons to debtor showed a hearing date of 7 February 2020. In fact the relevant List date at which the application was to be called was 4 February 2020. When the matter was called on 4 February 2020, there was no appearance for the judgment creditor or the judgment debtor.

[3]                 When the matter  was  called  on  4  February  2020,  it  was  adjourned  to  20 February 2020 and I directed that the judgment debtor be advised of the adjourned hearing date.

[4]                 Accordingly, the situation is that the judgment debtor is aware of the bankruptcy proceedings, albeit that the proceedings when served, showed an incorrect first call date. As far as I can tell from the court file, the judgment debtor has made no contact with the court and the judgment creditor reports no contact.

[5]                 The practical difficulty is that the judgment debtor no longer resides at the address where the papers were originally served. The process server’s affidavit filed in support of the application for substituted service records that upon his revisiting the address, the property appeared to have been damaged by a house fire and no one was residing there.

[6]                 The process server deposes as to attempting service at other addresses that, presumably, his research suggested were possible addresses for the judgment debtor, but without success.

[7]                 The judgment creditor is left in the position that it now has to apply for substituted service in respect of having to give notice to the judgment debtor of the next hearing date.

[8]                 I am satisfied that the judgment creditor has taken reasonable steps to serve the judgment debtor with the correct date of the next call of the bankruptcy application, which has been adjourned while the judgment creditor attempts service on the judgment debtor.

[9]                 This  proceeding   is   presently   to   be   called   in   the   List   on  Thursday 6 August 2020. I vacate that call, given that substituted service cannot be completed within time for that date to be practical.

[10]            The proceeding is adjourned to Thursday 20 August 2020 at 10.00 am to allow substituted service to be completed and the judgment creditor is to ensure that the enlarged date is recorded in the documents to be served and in the advertisement to be placed in the Public Notices section of the newspaper.

[11]Accordingly, I direct:

(i)Personal service on the judgment debtor with the judgment creditor’s application for adjudication, summons to debtor showing a hearing date of 20 August 2020 at 10am at the Christchurch High Court, and the affidavit in support of the judgment creditor’s application (the documents) is dispensed with.

(ii)Service upon the judgment debtor will be deemed to be effected upon the completion of the following three events:

(a)service of the documents is to be effected by attaching a copy of the documents,  together with  a copy of this  judgment, in  a sealed envelope marked “Confidential” addressed to the judgment   debtor,   to   be   placed   in   the   mail   box   of   10 Woodend Road, Woodend;

(b)by advertising in the Public Notices section of The Press newspaper;

(c)by the judgment creditor sending a text message to any mobile number the judgment creditor has for the judgment debtor, advising  that  the   documents   have   been   delivered   to   10 Woodend Rd, Woodend, pursuant to an order for substituted service and that the bankruptcy application is to be called in the Christchurch High Court on Thursday 20 August 2020 at 10am.

[12]Costs are reserved.

Associate Judge Lester

Solicitors:
Akarana Legal, Panmure