JEFFREYS AND ANOR v MORGENSTERN [2014] NZHC 2847

JEFFREYS AND ANOR v MORGENSTERN [2014] NZHC 2847

The Court held the 6 May 2014 memorandum was not materially misleading for the purposes of ordering rescission; the description that there was no front gate (adjacent to the road) and that the driveway was shared was not a material misdescription and would not have changed the Court's approach to substituted service under r 6.8; accordingly the application to rescind the substituted service order was dismissed and the bankruptcy notice remains served.

Citation
[2014] NZHC 2847
Parties
Judgment Creditor: Stephanie Beth Jeffreys; Judgment Creditor: Timothy Wilson Downes; Judgment Debtor: Arthur Sylvan Morgenstern; Company in Liquidation: Kingdon Undertaking Limited (in Liquidation)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 November 2014
Procedural Posture
Bankruptcy and Companies Act Liquidation / Interlocutory Application to Rescind Substituted Service Order (without‑notice Order Review)
Outcome
Application to rescind substituted service order dismissed; bankruptcy notice remains served
Legal Topics
Substituted Service, Rescission of Ex Parte Orders, Bankruptcy Notice, Directors' Duties Judgment Enforcement
Insolvency Law Civil Procedure Companies Law Service of Process Substituted Service Rescission of Ex Parte Orders Bankruptcy Notice Directors' Duties Judgment Enforcement

Case Brief

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Parties

Stephanie Beth Jeffreys

Judgment Creditor

Timothy Wilson Downes

Judgment Creditor

Arthur Sylvan Morgenstern

Judgment Debtor

Kingdon Undertaking Limited (in Liquidation)

Company in Liquidation

Procedural Posture

Bankruptcy and Companies Act Liquidation / Interlocutory Application to Rescind Substituted Service Order (without‑notice Order Review)

Legal Issues

  1. 1 Whether the without‑notice memorandum of 6 May 2014 materially misled the Court such that the substituted service order should be rescinded
  2. 2 Whether substituted service on solicitors or by affixing to property was appropriate under r 6.8 High Court Rules
  3. 3 Whether the bankruptcy notice should be treated as never served if substituted service order is rescinded

Ratio Decidendi

The Court held the 6 May 2014 memorandum was not materially misleading for the purposes of ordering rescission; the description that there was no front gate (adjacent to the road) and that the driveway was shared was not a material misdescription and would not have changed the Court's approach to substituted service under r 6.8; accordingly the application to rescind the substituted service order was dismissed and the bankruptcy notice remains served.

Court Disposition

Application to rescind substituted service order dismissed; bankruptcy notice remains served

Orders

  • Application to set aside substituted service order dismissed
  • Bankruptcy notice remains treated as served on the judgment debtor