S.H. Lock (NZ) Ltd v Bryant

[2020] NZHC 1251

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000696

[2020] NZHC 1251

BETWEEN

S.H. LOCK (NZ) LTD Plaintiff

AND

MARK GEOFFREY BRYANT

Defendant

Hearing:	Determined on the papers
Counsel:	B Martelli for Plaintiff
Judgment:	8 June 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 June 2020 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

S.H. LOCK (NZ) LTD v BRYANT [2020] NZHC 1251 [8 June 2020]

[1]    The defendant guaranteed the obligations of Celcrete Cladding Solutions (2008) Ltd (in receivership) (Celcrete) under a debtor finance agreement with the plaintiff of 17 November 2015. Celcrete has defaulted under the debtor finance agreement and the plaintiff seeks judgment against the defendant in this proceeding for $284,212 plus costs and interest pursuant to his guarantee.

[2]    The plaintiff has attempted to serve the statement of claim, notice of proceeding and a bundle of documents by way of initial disclosure (“the documents”) upon the defendant without success. The plaintiff now applies for an order dispensing with service upon the judgment debtor or authorising substituted service upon him.

The law

[3]    The application is made in reliance upon r 6.8 High Court Rules 2016 and is made on a without notice basis. Requiring the plaintiff to proceed on notice would defeat the purpose of this application and cause undue delay and prejudice to the plaintiff.1

[4]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

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

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

[5]    The evidence before me is contained in an affidavit of Clive Martin Williams. He is a process server who received instructions from the plaintiff to serve the documents upon the defendant at 144 Robinsons Road, RD 4, Prebbleton, Christchurch.

[6]The evidence satisfies me that:

(a)The defendant is residing at 144 Robinsons Road, RD 4, Prebbleton with members of his family.

(b)Mr Williams has been to 144 Robinsons Road on three occasions in an effort to serve the defendant and he has made reasonable efforts to serve the documents.

(c)On 21 January 2020 and 23 January 2020 Mr Williams went to 144 Robinsons Road to serve the defendant. On both occasions he spoke to an occupant of the property (likely to be the defendant’s parents) who indicated that the defendant is at the address but not currently at home. On each occasion Mr Williams left contact details, but the defendant has not contacted him.

(d)On Monday, 17 February 2020, Mr Williams sent the documents to the defendant by both post and email. He advised the defendant that he would return to 144 Robinsons Road on 21 February 2020 at 9.00 am to serve the documents. He advised also that if that day was not

convenient the defendant could contact him to arrange a different time. He then returned to the property for a third time on 21 February 2020. He was told the defendant had not come home the previous night.    Mr Williams then left a copy of the documents and asked the occupant to give them to the defendant.

(e)The defendant is almost certainly aware of the court proceeding and the attempts to serve him but is evading personal service.

Discussion

[7]    In the circumstances described above, the requirements of r 6.8 are met. The plaintiff has sought orders that service be dispensed with and the defendant be deemed to have been served on 22 February 2020. I have decided that I will not proceed in that manner. Whilst I am satisfied that the defendant is almost certainly aware of the court proceeding and is evading service he should have notice that time is running against him for the filing of a defence. Therefore, I am going to make an order for substituted service in the terms below.

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 by:

(i)delivering the service copies of the documents to an occupant at 144 Robinsons Road, Prebbleton together with this judgment and a sealed order for substituted service;

(ii)sending an email to the defendant at the email address referred to in the affidavit of Clive Martin Williams advising him the documents have been left for him by way of service at

144 Robinsons Road, Prebbleton in accordance with this order of the court for substituted service;

(c)Service of the documents shall be deemed to be effected upon completion of the steps specified at sub-paragraph (b) above.

[9]Leave is reserved for any party to further apply.

[10]The costs of this application are reserved.

O G Paulsen

Associate Judge

Solicitors:

Heaney & Partners, Auckland