Mt Admiral Farms Limited v Goodman

[2023] NZHC 86

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000415

[2023] NZHC 86

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of DEBORAH MARIE GOODMAN

BETWEEN

MT ADMIRAL FARMS LIMITED

Judgment Creditor

AND

DEBORAH MARIE GOODMAN

Judgment Debtor

Hearing:	On the papers
Counsel:	G J Ryan for Judgment Creditor
Judgment:	3 February 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 February 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MT ADMIRAL FARMS LTD v GOODMAN [3 February 2023]

[1]                  The judgment creditor has filed a creditor’s application for an order adjudicating the judgment debtor bankrupt. The judgment creditor has been unable to serve the creditor’s application and related documents on the judgment debtor and has applied for:

(a)an enlargement of the creditor’s application presently scheduled for hearing on 9 February 2023; and

(b)orders for substituted service.

[2]                  The judgment debtor has recently applied to the District Court to set aside the judgment creditor’s judgment upon which this bankruptcy proceeding is based. She has engaged a local law firm, Godfreys Law, to act for her and counsel, Mr David Jackson, has been instructed.

Substituted service application

[3]                  The judgment creditor was able to serve the bankruptcy notice issued in this proceeding upon the judgment debtor at a property at Woodend where, it is understood, the judgment debtor resides. The process server has deposed that the judgment debtor did not willingly accept service of the bankruptcy notice. The judgment creditor has, however, been unable to serve the creditor’s application.

[4]                  The process server instructed to effect service of the creditor’s application has made six attempts at service at the judgment debtor’s residence, but all attempts have been unsuccessful. The circumstances described by the process server indicate the judgment debtor was present on the property during some of those occasions and is evading him.

[5]                  The application for substituted service is made in reliance upon r 6.8 High Court Rules 2016. It has been made on a without notice basis, which is appropriate, as to require personal service of this application on the judgment debtor would be futile and defeat the purpose of the application itself.

[6]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 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).

[7]The evidence filed in support of the application satisfies me of the following:

(a)the judgment creditor’s agent has made reasonable efforts to serve the judgment debtor with the creditor’s application;

(b)the judgment debtor knows the process server and is wishing to avoid service of the documents;

(c)further attempts at service are unlikely to be successful;

(d)the judgment debtor has applied to set aside the judgment creditor’s judgment with the assistance of a local law firm, Godfreys, and counsel,

Mr David Jackson, and they are likely to be in contact with her; and

(e)the creditor’s application is likely to come to the judgment debtor’s attention if served in the manner proposed in the without notice application.

[8]                  Accordingly, I propose to make orders for substituted service, with only minor changes to what has been sought.

Application for enlargement

[9]                  The judgment creditor seeks an enlargement of the creditor’s application for three months within which time it expects service of the creditor’s application will be effected and the judgment debtor’s application to set aside the judgment in the District Court will be determined. That is appropriate and the creditor’s application will be enlarged to be called again at 10.00 am on 8 June 2023.

Result

[10]I make the following orders:

(a)Personal service upon the judgment debtor of the following documents in this proceeding is dispensed with, namely:

(i)creditor’s application for adjudication order;

(ii)summons to debtor;

(iii)verifying affidavit; and

(iv)the sealed order on this application.

(b)Service of the documents above shall be effected by:

(i)emailing the documents to the judgment  debtor’s  barrister, Mr David Jackson, at the email address set out in the judgment creditor’s without notice application; and

(ii)delivering the documents to the offices of the debtor’s solicitors,

Godfreys Law; and

(iii)delivering the documents to an adult occupant at the debtor’s residence (at the address set out in para 1(a)(iii) of the without notice application), or if no person at that address will accept the documents, by affixing them to the front door of the residence.

(c)Service shall be deemed to have been effected upon the completion of all steps in (b) above.

(d)The judgment creditor’s application for an adjudication order is enlarged to be called again at 10.00 am on 8 June 2023.

(e)Costs on this application will be reserved.

O G Paulsen Associate Judge

Solicitors:

White Fox & Jones, Christchurch