Saunders and Co v Thorn - [2024] NZHC 1587

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-090

[2024] NZHC 1587

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of Andrew John Thorn

BETWEEN

SAUNDERS AND CO

Judgment Creditor

AND

ANREW JOHN THORN

Judgment Debtor

Hearing: On the papers

Appearances:

A N Riches for Plaintiff

Judgment:

17 June 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 17 June 2024 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

SAUNDERS AND CO v THORN [2024] NZHC 1587 [17 June 2024]

[1] Saunders & Co has obtained the issue of a bankruptcy notice against the judgment debtor, Mr Thorn, in respect to an award made in its favour by the Disputes Tribunal at Christchurch on 19 August 2020. It has not been able to serve the bankruptcy notice upon Mr Thorn and is seeking an order for substituted service of the bankruptcy notice as well as all other documents that are required to be served on Mr Thorn in this proceeding. It asks the Court to authorise substituted service by sending documents to Mr Thorn at his email address.

[2] Mr Thorn is aware that Saunders & Co has attempted to serve the bankruptcy notice upon him. He filed an application with the Court to prevent service of the bankruptcy notice. That application was dismissed by Associate Judge Lester in a minute of 14 March 2024.

[3]Saunders & Co relies upon r 6.8 of the High Court Rules 2016. It 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.

(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Saunders and Co v Thorn and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1587
Decision Date: 17 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, Saunders & Co, acting as the judgment creditor, sought substituted service of a bankruptcy notice against Andrew John Thorn, the judgment debtor. The dispute arose from a previous award made in favour of Saunders & Co by the Disputes Tribunal. Despite multiple attempts to serve the bankruptcy notice personally, Saunders & Co was unable to effect service on Mr Thorn, who had taken steps to avoid it. The Court was tasked with deciding whether substituted service by email was appropriate under the circumstances.

The primary legal issue was whether the requirements for substituted service under rule 6.8 of the High Court Rules 2016 were met. Saunders & Co argued that reasonable efforts had been made to serve the document, that the document had come to the knowledge of Mr Thorn, and that email service was likely to bring the document to his notice. The Court found that the criteria were satisfied as Saunders & Co had engaged process servers multiple times, Mr Thorn was aware of the attempts to serve the notice, and there was evidence suggesting he would accept service via email. The Court concluded that substituted service by email was appropriate.

The Court granted the application for substituted service of the bankruptcy notice by email. The Court reserved the costs of the application and also reserved leave for Saunders & Co to apply for substituted service of any other documents required in the proceeding, subject to providing further details on contact attempts and other relevant circumstances. The Court emphasized that substituted service by email would only be authorized if reasonable efforts to serve personally had failed and if the proposed method of substituted service was likely to be effective.

The final orders included dispensing with personal service of the bankruptcy notice and allowing substituted service by email. The Court also reserved costs and provided for future applications regarding the service of other documents, ensuring that any such applications would need to include detailed information on further contact attempts and other pertinent circumstances.

Orders