Southpac 2015 Limited (in liquidation) v Dziamska
[2022] NZHC 530
•21 March 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-418-20
[2022] NZHC 530
UNDER the Insolvency Act 2006 IN THE MATTER
of the Bankruptcy of DOROTA KATARZYNA DZIAMSKA
BETWEEN
SOUTHPAC 2015 LIMITED (IN LIQUIDATION)
Judgment Creditor
AND
DOROTA KATARZYNA DZIAMSKA
Judgment Debtor
Hearing: (Determined on the papers) Counsel:
C T Jolliffe for Judgment Creditor
Judgment:
21 March 2022
JUDGMENT OF ASSOCIATE JUDGE LESTER
SOUTHPAC 2015 LIMITED (IN LIQUIDATION) v DZIAMSKA [2022] NZHC 530 [21 March 2022]
[1] On 14 October 2021, the judgment creditor, Southpac 2015 Limited (in liquidation) (the creditor), sealed an order for substituted service. The order related to service of a bankruptcy notice on the judgment debtor, Dorota Dziamska (the debtor). Personal service was dispensed with and orders made that the bankruptcy notice be left at the debtor’s property, served on a neighbour of the debtor with instructions to bring the document to the attention of the debtor and sent to the debtor by private message on Facebook Messenger. Service of the bankruptcy notice was completed in accordance with that order.
[2] At the time the order was sought, the debtor was living in Poland. While the steps to complete substitute service occurred in New Zealand, nonetheless the debtor being overseas could only be served the bankruptcy notice with leave.
[3] McGechan notes if service is affected outside New Zealand in a case where leave should have been obtained, such service will be an irregularity which the Court has power to remedy by giving leave retroactively under r 1.5 of the High Court Rules 2016 (the Rules).1
[4] Associate Judge Bell, in Westpac New Zealand Ltd v Bolton, when considering an application to serve a bankruptcy notice outside of New Zealand, set out the approach he adopted on whether to grant leave to serve a bankruptcy notice out of New Zealand.2 That approach was to look ahead to any future bankruptcy application by the judgment creditor which would rely on non-compliance with the bankruptcy notice. His Honour had regard to the criteria under r 6.28(5) of the Rules when considering whether leave would be granted to serve an adjudication application out of New Zealand. The Judge then considered whether it was appropriate for any bankruptcy of the judgment debtor to be administered in New Zealand.
[5] Under r 6.28(5) of the Rules, the Court may grant leave for an originating document to be served out of New Zealand if the claim has a real and substantial connection to New Zealand, there is a serious issue to be tried, and New Zealand is the appropriate forum for the trial.
1 Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR6.29.03].
2 Westpac New Zealand Ltd v Bolton [2014] NZHC 693.
[6]The evidence filed in support of the application provides:
The Judgment Debtor owns a half share of property, being 230 Kumara Junction Road, Hokitika, in New Zealand. Additionally, the debt in question was accrued while the Judgment Debtor was residing in New Zealand. Judgment for this debt was obtained against the Judgment Debtor by the Judgment Creditor in the New Zealand District Court in Nelson on 28 February 2018 at which time she was believed to be residing in New Zealand.
[7] I am satisfied it is appropriate that leave be granted under r 6.30 for the bankruptcy notice to be served outside of New Zealand and I grant that leave retroactively.
[8] I confirm that the time limit for the purposes of s 17(4) of the Insolvency Act 2006 is 10 working days. I note that the time limit is to some extent academic given the bankruptcy notice was served some time ago and the judgment debtor has taken no steps but, nonetheless, if a debtor is served outside of New Zealand s 17(4) of the Insolvency Act requires the Court to specify the time for compliance.
[9] I also grant leave for the creditor’s application for adjudication to be served on the debtor overseas.
[10] In support of the proposition that the bankruptcy notice has been brought to the debtor’s attention, it is said that the debtor has a Facebook profile to which the bankruptcy notice was served.
[11] The order granting the initial substituted service order reserved leave for the creditor to, by memorandum, apply for substituted service orders in relation to any further documents that would need to be served.
[12] The creditor has taken up that invitation and filed a memorandum seeking a further order for substituted service pursuant to the leave reserved. Given the debtor is still residing in Poland and given it appears that at least service by way of Facebook Messenger is being received, there is an order dispensing with personal service of the creditor’s application for adjudication, affidavit in support of the application, and summons to debtor. Substituted service of those documents and a copy of the sealed
order for substituted service is to be effected upon the debtor in the manner set out at paras 9.1, 9.2 and 9.3 of the judgment creditor’s memorandum of 15 February 2022.
[13] I assume that service by Facebook Messenger will be possible notwithstanding that the previous profile utilised has been blocked. If that is not possible then counsel is to advise.
Costs
[14]Costs are reserved.
Associate Judge Lester
Solicitors:
Anthony Harper, Christchurch