RHB Limited (in liquidation) v Payne

[2020] NZHC 1864

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000050

[2020] NZHC 1864

UNDER

the Insolvency Act 2006

IN THE MATTER

of the Bankruptcy of KYLE DOUGLAS PAYNE

BETWEEN

RHB LIMITED (In Liquidation) Judgment Creditor

AND

KYLE DOUGLAS PAYNE

Judgment Debtor

Hearing:	Determined on the papers
Counsel:	H D P van Schreven for Judgment Creditor
Judgment:	29 July 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 29 July 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RHB LTD (In Liquidation) v PAYNE [2020] NZHC 1864 [29 July 2020]

[1]    The judgment creditor is a company in liquidation. It has commenced bankruptcy proceedings against the judgment debtor. The liquidator has tried, but failed, to have the judgment debtor served with the creditor’s application for an adjudication order, summons to debtor and affidavit supporting creditor’s application (the documents). This is an application for orders dispensing with personal service and authorising substituted service of the documents upon the judgment debtor.

The Rules

[2]    The application is made in reliance upon r 6.8 High Court Rules. It has been made on a without notice basis as to require service upon the judgment debtor would defeat the purpose of the application and cause undue delay and prejudice to the judgment creditor.1

[3]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:

(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.

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

(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).

[4]    The evidence before me is contained in an affidavit of Tarquyn James Read (Mr Read). The evidence satisfies me as follows:

a)the judgment debtor was personally served by Mr Read with the bankruptcy notice issued in this proceeding at 138 Penruddock Rise, Christchurch on 7 February 2020;

b)the judgment debtor did not  satisfy the  bankruptcy notice  and  on  30 April 2020 the judgment creditor filed its creditor’s application for an adjudication order;

c)Mr Read was instructed to serve the judgment debtor with the documents;

d)Mr Read has gone to 138 Penruddock Rise, Christchurch on a number of occasions to serve the documents. He has visited the property in the early morning, at around lunchtime and during evening hours. On each occasion no-one has answered the door of the residence;

e)Mr Read has made enquiries of the neighbour who advised him that the judgment debtor is understood to be still living at 138 Penruddock Rise, Christchurch;

f)Mr Read believes that on at least  one  occasion  when  he  visited  138 Penruddock Rise there were people in the house who did not answer the door;

g)Mr Read has affixed a copy of the documents to the door of the residence;

h)the documents cannot be personally served upon the judgment debtor; and

i)the judgment creditor has made reasonable efforts to serve the judgment debtor without success.

[5]    I am satisfied the requirements of r 6.8 are met and it is appropriate that I dispense with personal service and order substituted service of the documents upon the judgment debtor.

[6]    Counsel advise me that following appointment the liquidator corresponded with the judgment debtor by email and to the best of the liquidator’s belief the judgment debtor’s email address remains active.

[7]    I consider the documents will come to the judgment debtor’s attention if they are emailed to his email address and if a further copy of the documents are left for the judgment debtor at 138 Penruddock Rise, Christchurch along with a copy of this ruling and the sealed order made in respect of it. Although copies of the documents have already been left at the address, if further copies of the documents, this ruling and the court’s sealed order are left together the judgment debtor will understand that service has been effected upon him. He will understand also that failure to take action satisfactory to the liquidator to satisfy the debt will result in his bankruptcy.

Result

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

a)Personal service of the documents is dispensed with;

b)Service of the documents is to be effected in the following manner:

i)by emailing them, this ruling and the sealed order to the judgment debtor’s email address (as stated in the memorandum of counsel of 27 July 2020); and

ii)leaving the documents, this ruling and the sealed order affixed to the door of the residence at 138 Penruddock Rise, Christchurch.

[9]    Service of the documents shall be deemed to be effected two working-days after completion of the steps in [8] above.

[10]The costs of this application are reserved.

[11]   I also reserve leave for either party to apply for further directions as may be required.

[12]The judgment creditor’s application for an adjudication order will be called for

hearing at 10am on 20 August 2020.

O G Paulsen Associate Judge

Solicitors:
Clark Boyce, Christchurch

Solicitors: