Supatreats Asia Pte Limited v Phamornpibul

[2020] NZHC 1895

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000036

[2020] NZHC 1895

UNDER

of the Insolvency Act 2008

IN THE MATTER

of the bankruptcy of Parita Phamornpibul

BETWEEN

SUPATREATS ASIA PTE LIMITED
Judgment Creditor

AND

PARITA PHAMORNPIBUL

Judgment Debtor

Hearing:	Determined on the papers
Counsel:	D J Chisholm QC and J D Ryan for Judgment Creditor
Judgment:	31 July 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 31 July 2020 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SUPATREATS ASIA PTE LTD v PHAMORNPIBUL [2020] NZHC 1895 [31 July 2020]

The application

[1]                 The judgment creditor has filed an application for an adjudication order against the judgment debtor in respect of a judgment obtained in this court on 17 December 2019 for $5,504,145 plus interest (the judgment).

[2]                 A bankruptcy notice was served on the judgment debtor on 24 February 2020 but attempts at personal service of the judgment creditor’s adjudication application have not been successful. The judgment creditor applies for orders dispensing with personal service of the creditor’s adjudication application, summons to debtor and affidavit in support (the documents) and authorising substituted service of the documents upon the judgment debtor in the following manner:

(a)by personal service on Chang Xi, the judgment debtor’s husband; and

(b)by service on the judgment debtor’s solicitor, Jerome Williamson of Linwood Law, at 15 Buckleys Road, Linwood, Christchurch.

[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

(ii)that the document be treated as served on the happening of a specified event, or on the expiry of a specified time:

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

(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 an affidavit of Malcolm David Hansen and satisfies me as follows:

(a)the judgment debtor has been residing at 29 Ernst Gray Place, Halswell, Christchurch where she was served with the bankruptcy notice;

(b)Mr Hansen has attempted to serve the documents on the judgment debtor at 29 Ernst Gray Place, Halswell on two occasions but has been unsuccessful;

(c)on the second such occasion, Mr Hansen spoke to the judgment debtor’s husband, Chang Xi, who advised that the judgment debtor had returned to Bangkok to care for her ill parents;

(d)the judgment debtor has been represented by Jerome Williamson of Linwood Law, Solicitors, Christchurch regarding the negotiation of a settlement deed under which the judgment was obtained;

(e)the documents cannot be served promptly upon the judgment debtor;

(f)the judgment debtor’s husband knows of her whereabouts and can make her aware of the documents;

(g)Mr Williamson is likely to have contact details for the judgment debtor; and

(h)the judgment creditor has made reasonable efforts to serve the judgment debtor with the documents, but she has either left the country or is evading service.

[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 in the manner set out in paragraph [2] hereof. I consider these are appropriate means of substituted service and will bring the documents to the attention of the judgment debtor.

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)personal service on Chang Xi, the judgment debtor’s husband; and

(ii)leaving copies of the documents at the offices of Jerome Williamson of Linwood Law at 15 Buckleys Road, Linwood, Christchurch;

(c)Chang Xi and Mr Williamson are directed to take reasonable efforts to draw the fact of service of the documents to the judgment debtor’s attention; and

(d)Service of the documents shall be deemed to have occurred two working days after completion of the steps specified in paragraph [8](b)(i) and (ii) above.

[9]The costs of this application are reserved.

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

[11]I note that the creditor’s application has been adjourned to be called again at

10.00 am on 20 August 2020.

O G Paulsen Associate Judge

Solicitors:
Burton Partners, Auckland