Te Pūkenga New Zealand Institute of Skills and Technology v Davis

[2024] NZHC 2335

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-068 [2024] NZHC 2335

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of Artemis Indigo Delilah Davis

BETWEEN

TE PŪKENGA – NEW ZEALAND INSTITUTE OF SKILLS AND TECHNOLOGY

Judgment Creditor

AND

ARTEMIS INDIGO DELILAH DAVIS

Judgment Debtor

Hearing:	On the papers
Appearances:	J A Farrow and J W Cowan for Judgment Creditor
Judgment:	20 August 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 20 August 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

TE PŪKENGA – NEW ZEALAND INSTITUTE OF SKILLS AND TECHNOLOGY v DAVIS [2024] NZHC 2335 [20 August 2024]

[1]    Te Pūkenga – New Zealand Institute of Skills and Technology (Te Pūkenga) has obtained the issue of a bankruptcy notice against the judgment debtor in respect of a judgment obtained in the District Court in favour of Emma Hogg, which has since been assigned to the judgment creditor.

[2]    Te Pūkenga has not been able to effect personal service of the bankruptcy notice upon the judgment debtor and is seeking an order for substituted service of the bankruptcy notice. It asks the Court to authorise substituted service by:

(a)sending a copy of the bankruptcy notice to the judgment debtor by email to her email address; and

(b)posting a copy of the bankruptcy notice to her at an address in Dannevirke which she has previously used as an address for service in court proceedings.

[3]    The judgment debtor is aware that Te Pūkenga is attempting to serve the bankruptcy notice upon her but has not agreed to accept service of it.

[4]Te Pūkenga relies upon r 6.8 of the High Court Rules 2016, which 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).

[5]    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.

1. On the basis of the evidence before me, I am satisfied as follows:

(a)Te Pūkenga engaged a process server to attempt personal service of the bankruptcy notice upon the judgment debtor but has been unsuccessful in those attempts;

(b)the judgment debtor is aware of the attempts to serve the bankruptcy notice upon her;

(c)the judgment debtor will not cooperate to accept service of the bankruptcy notice and will take steps to avoid service;

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

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

(e)the judgment debtor will receive the bankruptcy notice if it is sent to her by email;

(f)the judgment debtor has used the email address that Te Pūkenga has proposed be used to serve the bankruptcy notice upon her, both in court proceedings and in correspondence with Te Pūkenga’s solicitors; and

(g)the requirements of r 6.8 are met and it is appropriate to make an order for substituted service of the bankruptcy notice.

[7]    I do not consider it necessary to require Te Pūkenga to post a copy of the bankruptcy notice to the Dannevirke address. It appears the judgment debtor does not live at that address and there is no doubt that the bankruptcy notice has come to her attention and that service can be undertaken exclusively by email.

Result

[8]I make the following orders:

(a)personal service of the bankruptcy notice issued in this proceeding upon Ms Davis 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 the judgment debtor at her email address as set out in paragraph [1(b)(i)] of the notice of application for substituted service;

(c)service of the bankruptcy notice shall be deemed to be effected one working day after it is sent by email to the judgment debtor in accordance with paragraph (b) above;

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

(e)I reserve leave for Te Pūkenga 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 Ms Davis and any other circumstances that may be relevant to the granting of further orders for substituted service.

O G Paulsen Associate Judge

Solicitors:

Anderson Lloyd, Dunedin Copy to:

Artemis Davis