Resene Paints Limited v Kawhe

[2020] NZHC 2984

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-640

[2020] NZHC 2984

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of RALPH NEVILLE KAWHE

BETWEEN

RESENE PAINTS LIMITED

Judgment Creditor

AND

RALPH NEVILLE KAWHE

Judgment Debtor

Hearing:	(Determined on the papers)
Counsel:	R M Vokes for Judgment Creditor
Judgment:	11 November 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(as to further application for substituted service)

This judgment was delivered by me on 11 November 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 11 November 2020

RESENE PAINTS LIMITED v KAWHE [2020] NZHC 2984 [11 November 2020]

[1]                 This is a proceeding where the judgment creditor has experienced difficulties in serving the judgment debtor.

[2]                 On 20 March 2020 I made an order for substituted service in respect of the bankruptcy notice in this proceeding and I reserved leave for the judgment creditor to request by memorandum a further order as to substituted service in the event the adjudication application could not be promptly served.1

[3]                 As a result of the bankruptcy notice being served in accordance with the orders for substituted service, the occupant of the property where substituted service occurred contacted the judgment creditor’s solicitors and provided a new address for the judgment debtor at 15 Clydesdale Street, Woolston, Christchurch.

[4]                 The process server engaged by the judgment creditor attempted service on the judgment debtor a number of times at the Clydesdale Street address.

[5]                 On 1 October 2020, the process server engaged by the judgment creditor, saw a male leave the Clydesdale Street address and enter a vehicle registered to the judgment debtor. The process server, believing that the person was the judgment debtor, put the adjudication proceeding documents under the windscreen wiper of the vehicle and drew the driver’s attention to the proceeding.

[6]                 The judgment creditor is left in doubt as to the validity of service and wants to ensure that there can be no arguments about the judgment debtor being served.

[7]                 I am satisfied that the judgment creditor has taken reasonable steps to serve the adjudication proceeding and that those documents cannot be promptly served. Accordingly, the judgment creditor is entitled to invoke the leave reserved in my Judgment of 20 March 2020 to seek a further order for substituted service by way of memorandum.

[8]The papers filed on the unknown driver had a call date of 15 October 2020.

1      Resene Paints Ltd v Kawhe [2020] NZHC 597.

[9]Counsel for the judgment creditor seeks that the proceeding be enlarged to

10.00 am on 26 November 2020. I so direct and counsel for the judgment creditor is to amend the date on the summons accordingly prior to service.

[10]              Given there are doubts about the validity of the service, I am not prepared to make an order treating the service on 1 October 2020 as valid.

[11]              However, it is appropriate that an order for substituted service be made in terms of the draft order filed with counsel’s memorandum dated 10 November 2020, with the addition that the method of service provided at para 2(a) is also to be completed at 15 Clydesdale Street, Woolston, Christchurch.

[12]Accordingly, there is an order in terms of the draft order, with that addition.

Associate Judge Lester

Solicitors:
Gifford Devine, Hastings