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 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]                 To obtain an order for substituted service of a document it is generally necessary for the applicant to show:1

(a)reasonable efforts have been made to serve the document;

(b)either the document cannot be promptly served, or it has come to the knowledge of the person to be served; and

(c)the proposed method of substituted service will be likely to bring the document to the notice of the person to be served.

[5]On the basis of the affidavit evidence before me, I am satisfied as follows:

(a)Saunders & Co has engaged process servers to attempt personal service of the bankruptcy notice on Mr Thorn on several occasions;

(b)Mr Thorn is aware of the attempts at service of the bankruptcy notice upon him;

(c)Mr Thorn will not cooperate to accept service of the bankruptcy notice and has taken active steps to avoid service, including by advising one process server by text message that he “was trespassed from any and all of my property addresses”, and another process server that he would not accept service;

(d)Mr Thorn has lodged a complaint against a solicitor at Saunders & Co with the Law Society in respect to efforts made to serve the bankruptcy notice;

1      Heartland Bank Ltd v Wilfred [2022] NZHC 1328.

(e)Further attempts at personal service of the bankruptcy notice are unlikely to be successful;

(f)Mr Thorn will receive the bankruptcy notice if it is sent to him by email; and

(g)Mr Thorn has used the email address that Saunders & Co has proposed be used to serve documents upon him when filing documents with the Court.

[6]                 The requirements of r 6.8 are met and it is appropriate to make an order for substituted service of the bankruptcy notice.

[7]                 As to service of other documents in this proceeding, I will not make an order that they also be served by email at this stage, but in the orders below I will allow for further directions to be made in this regard if necessary.

Result

[8]I make the following orders:

(a)personal service of the bankruptcy notice issued in this proceeding upon Mr Thorn is dispensed with;

(b)service of the bankruptcy notice is to be effected by sending the bankruptcy notice, along with the sealed order made on this application for substituted service, to Mr Thorn at his email address as set out at paragraph [1.1] of the without notice of application of 12 June 2024;

(c)service of the bankruptcy notice shall be deemed to be effected two working days after completion of the steps referred to at [8(b)] above;

(d)the costs of this application are reserved; and

(e)I also reserve leave for Saunders & Co to apply by memorandum for substituted service of any other documents required to be served in this proceeding, provided such memorandum advises of any further contact with Mr Thorn, any steps taken to serve documents upon him personally and any other circumstances that may be relevant to the granting of further orders for substituted service.

O G Paulsen Associate Judge

Solicitors:

Saunders & Co, Christchurch Copy to: Mr Thorn