UDC Finance Limited v Rodgers

[2025] NZHC 935

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2025-454-35

[2025] NZHC 935

BETWEEN

UDC FINANCE LIMITED

Applicant

AND

NEVILLE ALLAN RODGERS

Respondent

Hearing:	On the papers
Appearances:	S C D A Gollin and A E Simkiss for Applicant
Judgment:	16 April 2025

JUDGMENT OF McHERRON J

[1]                 UDC Finance Ltd (UDC) seeks orders dispensing with personal service and authorising substituted service of a statutory notice under the Property Law Act 2007.

[2]                 On 18 November 2021, UDC entered into a loan agreement with Pacific Mulching Ltd (PML) under which UDC provided funding to assist PML with the purchase of a 2019 CBI 5800BT grinder.

[3]                 UDC’s funding under this loan was secured by, among other things, a security agreement dated 31 May 2021 (Security Agreement) supplemented by an additional collateral acknowledgement dated 18 November 2021 (2021 ACA).

[4]                 Neville Allan Rodgers, the respondent, is the sole director and shareholder of PML. In addition to signing the loan agreement on behalf of PML, Mr Rodgers signed a guarantee, under which he guaranteed all amounts payable by PML under the loan agreement. Amounts owing to UDC under the loan agreement are also secured by a

UDC FINANCE LIMITED v RODGERS [2025] NZHC 935 [16 April 2025]

Kobelco Excavator, a Hitachi Excavator, a Wedgelock Tenx Coupler (together with the grinder, the Secured Assets).

[5]                 PML defaulted under the terms of the loan agreement. UDC repossessed the Secured Assets between December 2024 and March 2025.

[6]                 UDC now wishes to serve on Mr Rodgers a notice under s 132 of the Property Law Act in relation to that default and in respect of the repossession of the Secured Assets, which UDC now wishes to sell.

[7]                 With its application, UDC has provided an affidavit of Leigh Bernard who states that during the repossession and attempted repossession of the secured assets Mr Rodgers behaved in a manner which hindered the repossession and which raised safety concerns for UDC’s agents.

[8]                 In June 2024, UDC’s agents attempted to personally serve Mr Rodgers at an address in Levin but was told in each case that Mr Rodgers did not reside there.

[9]                 UDC has also attempted to serve Mr Rodgers by email through PML’s solicitor, Mr Keith Jefferies. During these service attempts, Mr Jefferies confirmed he was instructed to accept service on behalf of PML, but did not confirm he had instructions to accept service on behalf of Mr Rodgers.

[10]             Under the Property Law Act, service of any notice is required to take place by registered post or personal service.1 However, s 357 provides that the Court may, on application, make an order dispensing with personal service of any notice issued pursuant to the Property Law Act. Rule 19.2(s) of the High Court Rules 2016 provides that such an application must be made by originating application.

[11]UDC seeks the following orders:

1      Property Law Act 2007, ss 353, 359 and 360.

(a)that personal service of notices pursuant to ss 130 and 132 of the Property Law Act on the respondent, Neville Allan Rodgers, be dispensed with;

(b)that service of the Property Law Act notices on Mr Rodgers be effected by:

(i)leaving a copy of the notices, together with a copy of the Court’s sealed orders for substituted service, in the letterbox at a specified Levin address together with a letter requesting the occupants of the address bring the documents to the attention of Mr Rodgers;

(ii)sending copies of the Property Law Act notices and Court order to the email address for Mr Jefferies;

(iii)sending a text message to a phone number identified in the application as belonging to Mr Rodgers and informing him that copies of the Property Law Act notices and order have been served in accordance with the methods described above.

(c)that service of the Property Law Act notice on Mr Rodgers be deemed to be effected by the completion of these steps;

(d)that service of any future documents on Mr Rodgers be deemed to have been effected upon completion of the above steps;

(e)that the costs of this application be reserved.

My assessment

[12]             For the reasons identified in the application, memorandum and affidavits filed on behalf of UDC, I consider it is appropriate to make the orders sought. These materials explain the prior dealings of UDC’s agents with Mr Rodgers, during which he has refused to accept service of documents presented to him and has conducted

himself in a manner justifying UDC’s belief it is no longer safe and viable to attempt personal service on him.

[13]             I acknowledge UDC’s understanding that Mr Rodgers had resided at the named address but that it now understands he no longer does so. In the absence of an alternative address for Mr Rodgers, I am persuaded that service in accordance with the orders sought is likely to bring the Property Law Act notices to Mr Rodgers’ attention because the current occupants of the address are known to him and are likely to be able to contact him to bring the notices to his attention. Further, UDC’s application establishes that the phone number has been used by Mr Rodgers and appears to be active.

[14]Accordingly, I make the orders sought by UDC as set out above at [11].

McHerron J

Solicitors:

MinterEllisonRuddWatts, Auckland for Applicant