Kiwibank v Aitken

[2024] NZHC 1131

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-303

[2024] NZHC 1131

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of HARLEY JASON AITKEN

BETWEEN

KIWIBANK LIMITED

Judgment Creditor

AND

HARLEY JASON AITKEN

Judgment Debtor

Hearing:	On the papers
Appearances:	M J Robinson for Judgment Creditor
Judgment:	8 May 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 May 2024 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

KIWIBANK LIMITED v AITKEN [2024] NZHC 1131 [8 May 2024]

[1]    The judgment creditor has filed an application for orders dispensing with personal service of a creditor’s application and summons to debtor upon the judgment debtor and for substituted service of the documents along with a verifying affidavit and sealed order made on this application (the documents) by sending the documents as attachments/photographs by text message to the judgment debtor on his mobile telephone number.

[2]The application is made under r 6.8 of the High Court Rules 2016.

[3]    Associate Judge Lester previously made an order for substituted service of the bankruptcy notice issued in this proceeding upon the judgment debtor in the same manner in a judgment of 11 October 2023.1

[4]    The bankruptcy notice was served  as directed by Associate Judge Lester on  9 November 2023.

[5]    In considering the present application, I have had regard to the evidence that was before Associate Judge Lester as well as new information that has been put before me.

[6]    The judgment creditor has made recent efforts to locate the judgment debtor and effect personal service upon him but without success. In support of the present application an affidavit of a process server, Paul Kozlovskis, has been filed. He says that instructions were received to personally serve the judgment debtor at an address in Halswell but it appears the judgment debtor no longer lives at the address.

[7]    There have, however, been attempts to contact the judgment debtor on his mobile phone number. On 5 March 2024, the judgment debtor answered a call made to his mobile phone and was advised that the call was in relation to the judgment creditor. The judgment debtor asked to be called back but has since not answered calls to his mobile phone.

1      Kiwibank Ltd v Aitken [2023] NZHC 2859.

[8]    Given the history of the matter and the latest evidence filed, it is apparent the judgment debtor seeks to avoid service. I am also satisfied that he is aware the judgment creditor is taking bankruptcy proceedings against him and that the documents will come to his attention if served in the manner proposed. It is appropriate to make the orders sought under r 6.8.

Result

[9]    There shall be an order dispensing with personal service of the documents upon the judgment debtor and directing substituted service of them on the terms contained in the draft order filed by the judgment creditor, save that paragraph (c) of the draft order is to be deleted and the following terms included:

(c)Service of documents shall be deemed to be completed two working days after the above text message is sent to the judgment debtor.

(d)If there is reason to believe the judgment debtor’s mobile phone number has been disconnected or is no longer in use by him, the judgment creditor shall notify the Court immediately and seek further directions.

[10]The costs of this application are reserved.

O G Paulsen Associate Judge

Solicitors:

Turner Hopkins, Takapuna