Malley & Co Lawyers (a firm) v Bryant

[2020] NZHC 341

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000692

[2020] NZHC 341

IN THE MATTER

of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy (or proposal, as the case may be) of Mark Geoffrey Bryant

BETWEEN

MALLEY & CO LAWYERS (A FIRM)

Judgment Creditor

AND

MARK GEOFFREY BRYANT

Judgment Debtor

Hearing:	Determined on the papers
Counsel:	M J McKay for Judgment Creditor
Judgment:	2 March 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 2 March 2020 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MALLEY & CO LAWYERS (A FIRM) v BRYANT [2020] NZHC 341 [2 March 2020]

[1]    The judgment creditor obtained a default judgment against the judgment debtor in the District Court at Christchurch on 15 November 2019 for $22,451.90. The judgment creditor has commenced bankruptcy proceedings against the judgment debtor but has been unable to serve upon the judgment debtor a bankruptcy notice that has been issued in respect of the judgment.

[2]    The judgment creditor has applied for orders dispensing with personal service and authorising substituted service of the bankruptcy notice upon the judgment debtor by delivering the document to the judgment debtor’s father, Geoffrey Randolph Bryant, at the address of 144 Robinson Road, Lincoln, Christchurch.

[3]The application is made in reliance upon r 6.8 High Court Rules 2016 and

Goodwin v Copland.1

[4]    The application is made on a without notice basis as, obviously, requiring the judgment creditor to proceed on notice would defeat the purpose of the application and cause undue delay and prejudice to the judgment creditor.2 Rule 6.8 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

1      Goodwin v Copland [2014] NZCA 568.

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

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).

[5]    The evidence before me contained in the affidavit of Clive Martin Williams is as follows:

(a)He is a process server who has previously served the judgment debtor with court proceedings at 19 Laing Crescent, Heathcote Valley, Christchurch.

(b)Upon receiving instructions from the judgment creditor to serve the bankruptcy notice upon the judgment debtor, he went to 19 Laing Crescent but there was no-one home. He made enquiries of a neighbour and was told that the judgment debtor had sold the property and left about three weeks earlier.

(c)An alternative address was found for the judgment debtor of 144 Robinsons Road, Lincoln. Between 21 January 2020 and 21 February 2020, Mr Williams has visited the property on four occasions to serve the judgment debtor with the bankruptcy notice.

(d)On a visit to 144 Robinsons Road on 21 January 2020, Mr Williams spoke with the judgment debtor’s father, Geoffrey Randolph Bryant, who confirmed that the judgment debtor was living at the address but was not in at that time. Mr Bryant was given Mr Williams’ business card and requested to have the judgment debtor contact Mr Williams. The judgment debtor did not do so.

(e)On 23 January 2020, Mr Williams visited the property and spoke with a female occupant who said that the judgment debtor was present and went to get him but then came out and said that he was not in. She was given Mr Williams’ business card, but the judgment debtor has not contacted him.

(f)On 27 January 2020, Mr Williams visited the property and spoke once again to the judgment debtor’s father. Mr Bryant went to look for the judgment debtor. He then came out and said that he could not find the judgment debtor. Mr Bryant said that he would get the judgment debtor to call Mr Williams, but the judgment debtor did not do so.

(g)On 21 February 2020, Mr Williams again visited the property and spoke with a female occupant who he believes to be the judgment debtor’s mother. She said that the judgment debtor was not there and had not been there the night before either.

[6]The evidence satisfies me that:

(a)the judgment debtor is living at 144 Robinsons Road, Lincoln;

(b)the judgment debtor is living at that address with members of his family including his father, Geoffrey Randolph Bryant;

(c)the judgment debtor is evading service;

(d)the judgment creditor does not have the means to effect personal service of the bankruptcy notice upon the judgment debtor; and

(e)the bankruptcy notice cannot be promptly served upon the judgment debtor.

[7]     In these circumstances the requirements of r 6.8 are met and it is appropriate that I dispense with personal service and order substituted service of the bankruptcy notice upon the judgment debtor in accordance with the application.

Result

[8]The orders that I make are as follows:

(a)Personal service of the bankruptcy notice dated 18 October 2019 upon the judgment debtor is dispensed with;

(b)Service of the bankruptcy notice is to be effected by delivering the bankruptcy notice to Geoffrey Randolph Bryant at 144 Robinsons Road, Lincoln, Christchurch; and

(c)The bankruptcy notice will be treated as served upon delivery of it to Geoffrey Randolph Bryant in accordance with paragraph (b) above.

[9]The costs of this application are reserved.

[10]   There is reference in the application to a letter from Malley & Co to Mr Bryant of 12 December 2019. As that is not a document that must be served under the High Court Rules I make no order in respect of it.

O G Paulsen Associate Judge

Solicitors:

Malley & Co, Christchurch