Nicholson v Nicholson

[2023] NZHC 146

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-104

[2023] NZHC 146

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Paul Nicholson

BETWEEN

GREGORY MARK NICHOLSON and GLEN ANTHONY NICHOLSON, as

Administrators of the Estate of Barry John Nicholson

Judgment Creditors

AND

PAUL NICHOLSON

Judgment Debtor

Hearing:	(On the papers)
Counsel:	C C McKay for the Judgment Creditors
Judgment:	9 February 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(substituted service)

NICHOLSON v NICHOLSON [2023] NZHC 146 [9 February 2023]

[1]        The judgment creditors seek an order that they can serve the judgment debtor, by way of email, with their application that he be adjudicated bankrupt.

[2]        I note as a preliminary point that the application for substituted service does not contain the full certificate required when an application is made without notice. Counsel will find the full certificate at the end  of Form G32 in the High Court  Rules 2016. I do not require the judgment creditors/applicants to file an amended application with the full certificate, however, a memorandum of counsel setting out the full certificate is to be filed with the Court before the order for substituted service is sealed.

[3]        The evidence confirms that the judgment creditors instructed a process server to serve the bankruptcy papers at the last known address for the judgment debtor. It seems the judgment debtor had left that address a few weeks before the attempted service, without having left a forwarding address. The judgment creditors do not have a new address for the judgment debtor.

[4]        The judgment creditors’ solicitors have been in contact with the judgment debtor by email. In fact, in an email to the solicitors dated 13 October 2022, the judgment debtor invited service of the bankruptcy proceedings on him by email. The solicitors treated that email as an invitation to serve the bankruptcy notice by email and the judgment debtor has, in a subsequent email dated 25 January 2023, acknowledged receiving the bankruptcy notice.

[5]        The affidavit of Ms Matheson confirms that the email address set out in the judgment creditors’ application is actively used by the judgment debtor. The last email exchange between the judgment debtor and Ms Matheson being on 25 January 2023. While Ms Matheson requested an address at which service could be completed, none was supplied by the judgment debtor.

[6]        I am satisfied that the judgment creditors have made reasonable efforts to serve the summons to debtor, creditors application for adjudication order, and affidavit in support of the creditors petition (the documents) by way of personal service on the judgment debtor, but that it is not practical for them to achieve personal service.

[7]Accordingly, there is an order dispensing with personal service.

[8]        The judgment creditors are to complete service by emailing the documents, together with a copy of this judgment, to the email address provided in the application for substituted service dated 7 February 2023.

[9]        The documents will be treated as being served on the judgment debtor the day after they are emailed to him.

[10]      I reserve leave to the judgment creditors to seek by way of memorandum an order that they may serve subsequent documents in this proceeding by way of email. I do not make such an order now, given circumstances may change between now and the need for any subsequent documents to be served.

[11]I confirm that the hearing date of the summons to debtor has been enlarged to

2 March 2023 at 10am.

Costs

[12]The costs of this application are reserved.

Associate Judge Lester

Solicitors:
Wilson McKay, Auckland (for the Judgment Creditors)

Copy to:
Mr P Nicholson, Judgment Debtor