Simpson v Police

[2020] NZHC 2254

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000301

[2020] NZHC 2254

UNDER

the Insolvency Act 2006

IN THE MATTER

of the Bankruptcy of Rosslyn Joy Anderson

BETWEEN

WARWICK EDWARDS SERVICES

LIMITED trading as EDWARDS & CO Judgment Creditor

AND

ROSSLYN JOY ANDERSON

Judgment Debtor

Hearing:	Determined on the papers
Counsel:	G D Trainor for Judgment Creditor
Judgment:	1 September 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 1 September 2020 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WARWICK EDWARDS SERVICES LTD v ANDERSON [2020] NZHC 2254 [1 September 2020]

[1]                  The judgment creditor obtained a judgment against the judgment debtor in the District Court at Christchurch on 14 March 2020 for $13,022.06. The judgment creditor has successfully applied for the issue of a bankruptcy notice against the judgment debtor but has been unable to effect personal service upon her.

[2]                  The judgment creditor applies for an order dispensing with personal service and authorising substituted service of the following documents upon the judgment debtor by leaving them in the letterbox of the residence at 11 Kinnaird Place, Hillmorton, Christchurch, namely:

(a)bankruptcy notice,

(b)request for issue of bankruptcy notice,

(c)certificate of judgment; and

(d)        the sealed order made on this application (collectively referred to as the documents).

[3]                  This application is made in reliance upon r 6.8 High Court Rules. It has been made on a without notice basis. This is appropriate. To require service upon the judgment debtor would defeat the purpose of the application.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

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

(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).

[5]                  The evidence before me is contained in the affidavits of Vanessa Mary Anderson and Debra-Anne Nield. The evidence satisfies me as follows:

(a)Following the issue of proceedings in the District Court, the judgment creditor made reasonable attempts to contact and serve the judgment debtor with the proceedings but was unable to do so. The District Court ordered substituted service of the proceedings upon the judgment debtor.

(b)Ms Nield has been able to confirm the judgment debtor resides at     11 Kinnaird Place, Hillmorton, Christchurch by speaking to a neighbour. The neighbour confirmed the judgment debtor resides at that address with her husband and two sons.

(c)11 Kinnaird Place is registered in the name of Paul John Anderson who is believed to be the judgment debtor’s husband. The property is fully fenced with only gated access. To access the property an occupant must open the gate from the inside.

(d)Ms Nield has gone to 11 Kinnaird Place to serve the judgment debtor with the bankruptcy notice on two occasions but has not been able to serve the judgment debtor. On the first occasion, no one came out of the house despite Ms Nield banging on the gate and there being a vehicle parked at the premises. On the next occasion, Ms Nield spoke to Paul John Anderson who advised her the judgment debtor was not available to receive documents at the time of the visit. He agreed to pass on a letter to the judgment debtor that advised her documents were to be served upon her and asking her to contact Ms Nield. The judgment debtor did not respond to that letter.

(e)The judgment creditor had contact cellphone numbers for the judgment debtor that are either disconnected or no longer belong to the judgment debtor. The judgment creditor has email addresses for the judgment debtor, but no response is received to emails sent to those addresses.

(f)It appears the judgment debtor is evading service of the bankruptcy notice.

[6]                  In these circumstances, 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.

[7]                  As noted above, the judgment creditor has requested that substituted service of the documents be effected by leaving them at the address of 11 Kinnaird Place, Hillmorton, Christchurch. I consider that is appropriate but in addition require that:

(a)the judgment creditor advertise the bankruptcy notice only in the Public Notices section of a Saturday edition of The Press newspaper; and

(b)send the documents to the judgment debtor at the email addresses in paragraph 3 of the affidavit of Vanessa Mary Anderson of 26 August 2020.

Result

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

(a)Personal service of the documents upon the judgment debtor is dispensed with;

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

(i)leaving the documents in  the letter box  of the residence at    11 Kinnaird Place, Hillmorton, Christchurch;

(ii)advertising the bankruptcy notice in the Public Notices section of a Saturday edition of The Press newspaper;

(iii)sending the documents to the judgment debtor at the email addresses in paragraph 3 of the affidavit of Vanessa Mary Anderson of 26 August 2020.

[9]                  Service of the documents shall be deemed to be effected upon completion of all steps in [8](b).

[10]The costs of this application are reserved.

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

O G Paulsen Associate Judge

Solicitors:

MacLean & Associates Lawyers, Christchurch