Resene Paints Limited v Pincott

[2020] NZHC 1202

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000047

[2020] NZHC 1202

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of GARRATH SEAN PINCOTT

BETWEEN

RESENE PAINTS LIMITED

Judgment Creditor

AND

GARRATH SEAN PINCOTT

Judgment Debtor

Hearing:	Determined on the papers
Counsel:	R M Vokes for Judgment Creditor
Judgment:	3 June 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 June 2020 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RESENE PAINTS LTD v PINCOTT [2020] NZHC 1202 [3 June 2020]

[1]    The judgment creditor has commenced bankruptcy proceedings against the judgment debtor in respect of a default judgment for $4,260.09 obtained in the District Court at Christchurch on 29 August 2019.

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

[3]    The judgment creditor now applies for orders dispensing with personal service upon the judgment debtor and authorising substituted service of the bankruptcy notice and any further documents that require service upon the judgment debtor in this proceeding.

The law

[4]    The application is made in reliance upon r 6.8 High Court Rules 2016 and is made on a without notice basis. Requiring the judgment creditor to proceed on notice would 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).

The evidence

[6]    The evidence before me is contained in an affidavit of Madeline Ruby McDonald, a solicitor from Hastings employed by the law firm representing the judgment creditor. The evidence satisfies me that:

(a)the judgment creditor’s solicitors instructed a process service agent at Christchurch (the agent) to serve the bankruptcy notice upon the judgment debtor at his last known residential address and provided telephone and email address contacts for him;

(b)the agent attempted to serve the judgment debtor with the bankruptcy notice at his last known residential address and contact him by telephone and email but without success;

(c)the judgment debtor has a wife/partner named Sherie Phillips-Pincott, and the agent has contacted her by telephone and has her email address;

(d)Sherie Phillips-Pincott refuses to provide contact details for the judgment debtor but is plainly in contact with him;

(e)Sherie Phillips-Pincott has said that any documents for service upon the judgment debtor can be sent to her email address for the judgment debtor; and

(f)the judgment debtor is almost certainly aware of attempts by the agent to contact him but is evading personal service of any documents.

Discussion

[7]    In the circumstances described in [6] above, the requirements of r 6.8 are met and it is appropriate that I dispense with personal service of the bankruptcy notice upon the judgment debtor.

[8]    The judgment creditor seeks orders that substituted service be effected in the following manner:

(a)by emailing documents to Sherie Phillips-Pincott (at the email address referred to in the draft order) together with a covering letter asking that she bring the documents to the attention of the judgment debtor;

(b)sending a text message to Sherie Phillips-Pincott’s mobile telephone number (being the telephone number referred to in the draft order) advising that documents for service on the judgment debtor have been emailed to her in accordance with an order for substituted service; and

(c)directing that service of the documents on the judgment debtor shall be deemed to have been effected when the steps taken in (a) and (b) above have been taken.

[9]    I am satisfied that the judgment creditor has provided an up-to-date active email address and mobile telephone number for Sherie Phillips-Pincott and that service of documents at that email address will bring the documents to the judgment debtor’s attention.

[10]   The judgment creditor has also sought an order that any requirement for personal service of further documents in this proceeding be dispensed with and served upon the judgment debtor in the same manner as the bankruptcy notice. No purpose will be served in requiring the judgment creditor to make further attempts to serve the judgment debtor when he appears to be avoiding service and his wife/partner will not

provide contact details for him. It is appropriate that the orders sought are made but reserving leave for the judgment debtor to apply should he wish to do so.

Result

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

(a)Personal service of the bankruptcy notice issued in this proceeding and dated 30 January 2020 upon the judgment debtor is dispensed with;

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

(i)emailing a copy of the bankruptcy notice and the sealed order for substituted service to the judgment debtor’s wife/partner, Sherie Phillips-Pincott, at her email address (being the email address that is referred to in the draft order filed with the court) together with a covering letter directing that she bring the bankruptcy notice to the attention of the judgment debtor; and

(ii)sending a text message to the said Sherie Phillips-Pincott (at the mobile number referred to in the draft order filed with the court) advising that a bankruptcy notice for service on the judgment debtor has been emailed to her email address in accordance with an order for substituted service of the court;

(c)Service of the bankruptcy notice shall be deemed to be effected three working-days after completion of the steps specified at sub-paragraph

(b) above;

(d)Any requirement for personal service of further documents on the judgment debtor in this proceeding is dispensed with and service of such further documents shall be effected in the same manner as service of the bankrupt’s notice described in sub-paragraph (b) above; and

(e)Leave is reserved for any party to further apply.

[12]The costs of this application are reserved.

O G Paulsen Associate Judge

Solicitors:

Gifford Devine, Hastings