Porter Equipment Limited v Jones

[2020] NZHC 1558

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000016

[2020] NZHC 1558

UNDER

the Insolvency Act 2006

IN THE MATTER

of the Bankruptcy of HAYDEN ANDREW JONES

BETWEEN

PORTER EQUIPMENT LIMITED

Judgment Creditor

AND

HAYDEN ANDREW JONES

Judgment Debtor

Hearing:	Determined on the papers
Counsel:	P A Sheat for Judgment Creditor
Judgment:	3 July 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 July 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PORTER EQUIPMENT LTD v JONES [2020] NZHC 1558 [3 July 2020]

[1]    The judgment creditor has filed bankruptcy proceedings against the judgment debtor in respect of a judgment  obtained in the District Court at Christchurch on    28 May 2019 for $14,832.58.

[2]    A bankruptcy notice has been issued on the request of the judgment creditor in respect of the judgment debt but attempts at personal service of the bankruptcy notice upon the judgment debtor have not been successful.

[3]    The judgment creditor has applied for orders dispensing with personal service and authorising substituted service upon the judgment debtor of the bankruptcy notice.

[4]    The application is made in reliance upon r 6.8 High Court Rules 2016. It has been made on a without notice basis. The judgment creditor will be no more successful in serving this application than it has been serving the bankruptcy notice. To require service upon the judgment debtor would clearly defeat the purpose of this application and cause undue delay and prejudice to the judgment creditor.1

[5]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:

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

(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).

[6]    The evidence before me is contained in an affidavit of Clive Martin Williams and satisfies me as follows:

(a)Mr Williams is a process server who was instructed to serve the bankruptcy notice on the judgment debtor and was provided with addresses for service of 94 King Street, Rangiora and 8/832 Main North Road, Woodend, Christchurch.

(b)Mr Williams attempted to serve the judgment debtor at 94 King Street, Rangiora on two occasions. On the second occasion he spoke with an occupant of the property who advised that the judgment debtor no longer lived at that address but provided a phone number for the judgment debtor and said the judgment debtor would be visiting the property the next day. Mr Williams left a business card for the judgment debtor with a request that the judgment debtor contact him. The judgment debtor did not contact Mr Williams.

(c)On 21 February 2020, Mr Williams telephoned the judgment debtor and left a voice message asking the judgment debtor to contact him. The judgment debtor did not return the call.

(d)On 28 February 2020, Mr Williams managed to speak to the judgment debtor who made arrangements to meet Mr Williams to accept service of the bankruptcy notice but failed to keep the appointment.

(e)Mr Williams has made subsequent attempts to contact the judgment debtor by text message but has received no response.

(f)Mr Williams has also attempted to serve the judgment debtor at the address of 8/832 Main North Road, Woodend, Christchurch but that this is a storage facility.

(g)The judgment debtor is aware that Mr Williams has documents for service upon him and is evading service.

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

(i)The judgment creditor has made reasonable efforts to serve the bankruptcy notice upon the judgment debtor without success.

[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.

[8]    The judgment creditor has requested that substituted service be effected by delivering the bankruptcy notice to the occupant at 94 King Street, Rangiora and by placing an advertisement in the Public Notices of The Press newspaper. I consider these are appropriate means to effect substituted service and will bring the bankruptcy notice to the attention of the judgment debtor.

Result

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

(a)Personal service of the bankruptcy notice issued in this proceeding upon the judgment debtor is dispensed with.

(b)Service of the bankruptcy notice is to be effected by:

(i)leaving the bankruptcy notice with an adult occupant of the property at 94 King Street, Rangiora along with a letter from the judgment creditor’s solicitors asking that occupant to bring the bankruptcy notice to the attention of the judgment debtor; and

(ii)by publishing a notice (in the form of the draft submitted to the Court) in the Public Notices section of a Saturday edition of The Press newspaper;

[10]   Service of the bankruptcy notice shall be deemed to be effected two working days after completion of the steps specified in paragraph 9 above.

[11]The costs of this application are reserved.

[12]   I reserve leave to the judgment creditor to apply for such further directions as may be required.

O G Paulsen Associate Judge

Solicitors:
Akarana Legal, Panmure