Xceda Finance Limited v Mafuta

[2023] NZHC 1137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-44

[2023] NZHC 1137

UNDER

the Insolvency Act 2006

AND

IN THE MATTER

of Simbarashe Samuel Mafuta

BETWEEN

XCEDA FINANCE LIMITED

Judgment Creditor

AND

SIMBARASHE SAMUEL MAFUTA

Defendant

Hearing:	(Determined on the papers)
Counsel:	P J Bedogni for the Judgment Creditor
Judgment:	12 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Substituted Service)

This Judgment was delivered by me on 12 May 2023 at 11:45am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: …..

XCEDA FINANCE LIMITED v S MAFUTA [2023] NZHC 1137 [12 May 2023]

[1]                 The judgment creditor applies for an order for substituted service against the judgment debtor, Simbarashe Samuel Mafuta.

[2]                 I am satisfied, having regard to the evidence filed in support of the application, that reasonable efforts have been made to serve the bankruptcy notice on the judgment debtor and that it cannot be personally served.

[3]                 I am further satisfied that the following directions represent the method of service likely to bring the documents to the attention of the judgment debtor.

Orders

[4]I direct:

(a)Personal service on the judgment debtor with the bankruptcy notice is dispensed with.

(b)Service on the judgment debtor will be deemed to be effected upon the completion of the following steps:

(i)The bankruptcy notice together with a copy of the orders for substituted service are to be emailed to the address provided by the applicant for Tatenda Alvin Mafuta who is directed to bring the bankruptcy notice to the attention of the judgment debtor.

(ii)A copy of the bankruptcy notice and this order in a sealed envelope addressed to the judgment debtor is to be left with an adult occupant of the property address set out in para 1 of the memorandum of counsel dated 30 March 23. If no adult occupant is present, the documents are to be affixed to the front door of the property.

(c)The bankruptcy notice will be treated as served two working days after completion of the above steps.

[5]                 This application is adjourned with leave to the judgment creditor to request by memorandum a further order as to substituted service in the event any adjudication application cannot be promptly served (in which event the memorandum should contain counsel’s confirmation either that the judgment debtor can still not be located or attaching evidence as to subsequent difficulties as to service).

Costs

[6]                 Costs of this application are fixed on a 2B basis and are, with disbursements, to be costs in the cause.

Associate Judge Lester

Solicitors:
Martelli McKegg, Auckland (for Judgment Creditor)