Lacey v Britton
[2024] NZHC 1210
•15 May 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-530
[2024] NZHC 1210
UNDER of the Insolvency Act 2006 IN THE MATTER
of the bankruptcy of JASON MICHAEL BRITTON
BETWEEN
LATARSHIA MAREE LACEY
Judgment Creditor
AND
JASON MICHAEL BRITTON
Judgment Debtor
Hearing: On the papers Appearances:
C W J Fogarty for Judgment Creditor
Judgment:
15 May 2024
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 15 May 2024 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
LACEY v BRITTON [2024] NZHC 1210 [15 May 2024]
[1] The judgment creditor has filed an application for orders that would dispense with personal service of a bankruptcy notice upon the judgment debtor and for substituted service of the bankruptcy notice.
[2] The application is made under r 6.8 of the High Court Rules 2016 which provides:
6.8 Substituted 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.
(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).
[3] After receipt of the application, I convened a telephone conference with counsel and issued a minute directing that further enquiries be made which were intended to confirm the judgment debtor’s whereabouts and that the proposed manner of service would bring the bankruptcy notice to his attention.
[4] Counsel has provided the information requested and, in addition, a further affidavit has been filed by the judgment creditor.
[5] The judgment creditor has, through a local process server, attempted to serve the bankruptcy notice on the judgment debtor at an address where it is believed he resides, but without success. Importantly, on two occasions the process server spoke to a boy who told him the judgment debtor was “not at home”, which would suggest the judgment debtor does reside at that address. On another occasion it appears there were people present at the residence who chose not to answer the door. There is evidence that the property is rented to the judgment debtor’s partner and that he drives a vehicle that was parked at the property.
[6] There is also evidence that the judgment debtor did not engage in Family Court proceedings in which the judgment creditor obtained the order for payment of the amount owing that is the subject of the bankruptcy notice. He did provide an email address to the court, but emails sent to that address now bounce back so that does not provide an acceptable method to effect service.
[7] The judgment creditor believes the bankruptcy notice will come to the judgment debtor’s notice if served on his adult daughter. She deposes that the judgment debtor is in contact with his daughter and that she has agreed to pass documents on to him.
[8] I am satisfied the judgment debtor is avoiding service and that further attempts at personal service of the bankruptcy notice are unlikely to be successful. I am also satisfied the bankruptcy notice will come to the judgment debtor’s attention if served in the manner set out below. It is appropriate to make an order for substituted service under r 6.8.
[9] The bankruptcy notice was issued on 2 October 2023. Under r 24.9 of the High Court Rules a bankruptcy notice must be served within six months from the date of issue. The bankruptcy notice has accordingly expired. However, under r 24.9(3) the court may extend the period for service for a further three months from the expiry of
the bankruptcy notice if it is satisfied that reasonable efforts have been made to effect service of it.
[10] I am satisfied the judgment creditor did make reasonable efforts to serve the bankruptcy notice and that it is appropriate in the circumstances to make an order extending the period for service of the bankruptcy notice for three further months from 2 April 2024.
Result
[11] There shall be an order under r 24.9 of the High Court Rules extending the period for service of the bankruptcy notice for three months from 2 April 2024.
[12] There shall be an order under r 6.8 of the High Court Rules dispensing with personal service of the bankruptcy notice on the judgment debtor and directing substituted service of the bankruptcy notice and a copy of the sealed order made on this application in the following manner:
(a)by delivery of the documents to the judgment debtor’s adult daughter identified in the application;
(b)by affixing the bankruptcy notice to the front door of the premises identified at paragraph 6 of the judgment creditor’s updating affidavit of 19 April 2024; and
(c)service of the bankruptcy notice shall be deemed completed three working days after satisfaction of (a) and (b) above.
[13]The costs of this application are reserved.
O G Paulsen Associate Judge
Solicitors:
Cameron & Co, Christchurch
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