Pepper New Zealand (Custodians) Limited v Juanmiry

[2023] NZHC 3298

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2742

[2023] NZHC 3298

BETWEEN

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED
Applicant

AND

KAKABRA JUANMIRY

Respondent

Hearing:	On the papers
Counsel:	S C D A Gollin and C M Hoeft for Applicant
Judgment:	21 November 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 21 November 2023 at 10.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Minter Ellison Rudd Watts, Auckland

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED v JUANMIRY [2023] NZHC 3298 [21 November 2023]

[1]                 The applicant, Pepper New Zealand (Custodians) Ltd (Pepper) applies for orders:

(a)dispensing with personal service of a notice pursuant to s 119 of the Property                 Law    Act    2007    (PLA    Notice)    on    the    mortgagor,

Kakabra Juanmiry; and

(b)that service of the PLA Notice be effected in the manner described below.

[2]                 On or about 16 March 2022, the applicant as lender entered into a loan agreement with Mr Juanmiry, the respondent. The money and obligations owed by the respondent under that agreement were secured by a mortgage over a property situated at 28 Robert Ross Place, Manurewa. Mr Juanmiry subsequently defaulted under the terms of the loan agreement and Pepper wishes to serve a PLA Notice in respect of that default.

[3]                 During October 2023, a process server was asked to attend at the property to try to locate Mr Juanmiry or ask the occupants if they had his current residential address or  know his  whereabouts.  The  process server  attended  the property on  16 October 2023 and spoke with the occupants. They said they do not know who he is, nor do they have any contact details for him. They told the process server that they had arranged their occupation through another person, but they refused to provide any contact information for that person.

[4]                 The solicitors acting for Pepper conducted Companies Register searches for Mr Juanmiry’s name. There are two companies that list him as a current director and shareholder. Service agents were sent to those addresses, but the occupants said that they did not know Mr Juanmiry or his whereabouts.

[5]                 Further attempts have been made to contact Mr Juanmiry at an email address that Pepper has for him, and on Facebook where there are two profiles with the name of “Kakabra Juanmiry”. There has been no response from the email or Facebook messages.

[6]Pepper does not hold any other contact details for the respondent.

[7]                 A notice under s 119 of the Property Law Act must be served in accordance with ss 353 and 359 of the Property Law Act. However, under s 357 an order may be made dispensing with or directing another manner of service. Section 357 provides as follows:

357     Orders dispensing with, or directing manner of, service

(1)In any case referred to in sections 353 to 355,—

(a)a court may, on an application for the purpose, make an order—

(i)    dispensing with service; or

(ii)     directing that a notice, cross-notice, or other document is to be given or served in a manner other than that provided for in any of those sections or in any instrument; and

(b)if the court makes an order under paragraph (a)(ii), the notice, cross-notice, or other document is adequately given or served if it is given or served in accordance with the order.

(2)This section overrides sections 353 to 355 and all other provisions of this Act, and applies despite anything to the contrary in—

(a)any other enactment; or

(b)any instrument or agreement.

[8]                 I am satisfied that reasonable attempts have been made to achieve personal service upon Kakabra Juanmiry. Pepper has attempted several different methods to make contact with him, all of which have proven unsuccessful. It is appropriate that an order be made dispensing with personal service and directing some alternative means of service which will likely bring the notice to his attention.

[9]                 Pepper proposes that the following steps be taken to bring the notice of      Mr Juanmiry’s attention:

(a)delivering a copy of the PLA Notice, together with a copy of the sealed order, to the address of 28 Robert Ross Place, Manurewa and either leaving it with an adult occupant (along with a letter of instruction), or affixing it together with the sealed order on the outside door (with a letter of instruction);

(b)sending a copy of the PLA Notice, together with a copy of the sealed order, to the email address that Pepper holds; and

(c)sending a copy of the PLA Notice, together with a copy of the sealed order,   to   the   Facebook   accounts   with   the   username   “Kakabra Juanmiry”.

[10]              I also consider it appropriate to add to the above “publishing one advertisement in the public notices section of the New Zealand Herald”.

[11]              Subject to the addition referred to in [10] above, I am satisfied that it is appropriate to make orders in terms of paras [1(a)–(c)] and [1(e)] of the originating application, and I so order. Leave is reserved to apply for any further directions that may be required.

O’Gorman J