Quirk v Downey

[2024] NZHC 1075

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-030

[2024] NZHC 1075

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of RICHARD WILLIAM DOWNEY as trustee of St John’s Trust

BETWEEN

TREVOR KINRED QUIRK as executor of the Estate of PETER EDWARD CULMER READ

Judgment Creditor

AND

RICHARD WILLIAM DOWNEY

Judgment Debtor

Hearing:	On the papers
Counsel:	H D P van Schreven and J D Kaye for Judgment Creditor
Judgment:	3 May 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 May 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

QUIRK v DOWNEY [2024] NZHC 1075 [3 May 2024]

[1]    The judgment creditor is taking bankruptcy proceedings against Mr Downey. In a judgment of 12 April 2024, I granted an application for substituted service upon Mr Downey of the bankruptcy notice issued in this proceeding.1 Mr Downey was required to comply with the bankruptcy notice by 30 April 2024.

[2]    At 11.59 pm on 30 April 2024, Mr Downey sought to file by email an application to set aside the bankruptcy notice. On 1 May 2024, Mr Downey was advised by the Registrar that his application was not accepted for filing. However, relevantly for present purposes in his documents Mr Downey provided as his address for service both his email address and the physical address of the offices of his former solicitors.

[3]    On 1 April 2024, the judgment creditor filed a creditor’s application to adjudicate Mr Downey bankrupt. This was accompanied by an application for substituted service of the creditor’s application under r 6.8 of the High Court Rules 2016. In my judgment of 12 April 2024, I set out r 6.8 and its requirements.

[4]    The judgment creditor’s position remains that Mr Downey has moved from his last known address and his place of residence is unknown so that he cannot be personally served with the creditor’s application. Mr Downey did not arrange to accept personal service of the bankruptcy notice, but has corresponded many times with the judgment creditor’s solicitors and the court from his email address and he received the bankruptcy notice at that email address. The judgment creditor considers dispensing with personal service and granting substituted service by way of email will not prejudice Mr Downey but will bring the creditor’s application to his attention and more promptly so than if personal service is required.

[5]    In the usual course, under r 24.16 of the High Court Rules a creditor’s application and summons to debtor must be served personally upon a judgment debtor at least 10 working days before the hearing of the creditor’s application. Efforts were made to locate Mr Downey’s residential address, but these have been unsuccessful. Mr Downey did not accept service of the bankruptcy notice despite being requested to

1      Quirk v Downey [2024] NZHC 791.

do so, but it appears he would accept service by email and by delivery of documents to his former solicitors.

[6]    Mr Downey does not enjoy good health and I do not consider it is in anyone’s interest that personal service of the creditor’s application be required in circumstances where he has indicated that another reasonable manner of service is acceptable to him.

[7]    For the purposes of r 6.8 I am satisfied that the judgment creditor has made unsuccessful efforts to locate Mr Downey and cannot promptly serve the creditor’s application upon him, but that the creditor’s application will come to his attention if substituted service is effected in the manner set out below.

Result

[8]    I dispense with personal service of the creditor’s application, summons to debtor and verifying affidavit (the documents) upon Mr Downey and direct that substituted service of the documents and the sealed order for substituted service be effected in the following manner:

(a)by emailing a copy of the documents and the sealed order to the email address in paragraph [1(b)] of the judgment creditor’s without notice application of 1 May 2024; and

(b)by leaving the documents at the offices of GCA Lawyers, Level 1,

Duncan Cotterill Plaza, 148 Victoria Street, Christchurch 8140; and

(c)service of the documents and the sealed order upon Mr Downey will be deemed to be effected one working day following completion of the steps in (a) and (b) above.

[9]Costs on this application for substituted service are reserved.

O G Paulsen Associate Judge

Solicitors:

Clark Boyce, Christchurch
CC:

Mr Downey

GCA Lawyers, Christchurch