MALLEY & CO LAWYERS (A FIRM) v BRYANT [2020] NZHC 341

MALLEY & CO LAWYERS (A FIRM) v BRYANT [2020] NZHC 341 [2 March 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2019-409-000692[2020] NZHC 341IN THE MATTER of the Insolvency Act 2006IN THE MATTER of the bankruptcy (or proposal, as the casemay be) of Mark Geoffrey BryantBETWEEN MALLEY & CO LAWYERS (A FIRM)Judgment CreditorAND MARK GEOFFREY BRYANTJudgment DebtorHearing: Determined on the papersCounsel: M J McKay for Judgment CreditorJudgment: 2 March 2020JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 2 March 2020 at 10.00 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The judgment creditor obtained a default judgment against the judgment debtorin the District Court at Christchurch on 15 November 2019 for $22,451.90. Thejudgment creditor has commenced bankruptcy proceedings against the judgmentdebtor but has been unable to serve upon the judgment debtor a bankruptcy notice thathas been issued in respect of the judgment.[2] The judgment creditor has applied for orders dispensing with personal serviceand authorising substituted service of the bankruptcy notice upon the judgment debtorby delivering the document to the judgment debtor's father, Geoffrey RandolphBryant, at the address of 144 Robinson Road, Lincoln, Christchurch.[3] The application is made in reliance upon r 6.8 High Court Rules 2016 andGoodwin v Copland.1[4] The application is made on a without notice basis as, obviously, requiring thejudgment creditor to proceed on notice would defeat the purpose of the applicationand cause undue delay and prejudice to the judgment creditor.2 Rule 6.8 provides:6.8 Substituted service(1) If reasonable efforts have been made to serve a document by a methodpermitted or required under these rules, and either the document hascome to the knowledge of the person to be served or it cannot bepromptly served, the court may –(a) direct –(i) that instead of service, specified steps be taken that arelikely to bring the document to the notice of the person tobe served; and(ii) that the document be treated as served on the happening ofa specified event, or on the expiry of a specified time.(b) when steps have been taken for the purpose of bringing, or whichhave a tendency to bring, the document to the notice of the personon whom it is required to be served, direct that the document betreated 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 the1 Goodwin v Copland [2014] NZCA 568.2 High Court Rules 2016, r 7.46(3)(a).party by whom the document is required to be served leave toproceed 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 theperson to be served; or(b) where that person was or is likely to have been on the happeningof the event or the expiry of the time specified under subclause(1)(a)(ii).[5] The evidence before me contained in the affidavit of Clive Martin Williams isas follows:(a) He is a process server who has previously served the judgment debtorwith court proceedings at 19 Laing Crescent, Heathcote Valley,Christchurch.(b) Upon receiving instructions from the judgment creditor to serve thebankruptcy notice upon the judgment debtor, he went to 19 LaingCrescent but there was no-one home. He made enquiries of a neighbourand was told that the judgment debtor had sold the property and leftabout three weeks earlier.(c) An alternative address was found for the judgment debtor of 144Robinsons Road, Lincoln. Between 21 January 2020 and 21 February2020, Mr Williams has visited the property on four occasions to servethe judgment debtor with the bankruptcy notice.(d) On a visit to 144 Robinsons Road on 21 January 2020, Mr Williamsspoke with the judgment debtor's father, Geoffrey Randolph Bryant,who confirmed that the judgment debtor was living at the address butwas not in at that time. Mr Bryant was given Mr Williams' businesscard and requested to have the judgment debtor contact Mr Williams.The judgment debtor did not do so.(e) On 23 January 2020, Mr Williams visited the property and spoke witha female occupant who said that the judgment debtor was present andwent to get him but then came out and said that he was not in. She wasgiven Mr Williams' business card, but the judgment debtor has notcontacted him.(f) On 27 January 2020, Mr Williams visited the property and spoke onceagain to the judgment debtor's father. Mr Bryant went to look for thejudgment debtor. He then came out and said that he could not find thejudgment debtor. Mr Bryant said that he would get the judgment debtorto call Mr Williams, but the judgment debtor did not do so.(g) On 21 February 2020, Mr Williams again visited the property and spokewith a female occupant who he believes to be the judgment debtor'smother. She said that the judgment debtor was not there and had notbeen there the night before either.[6] The evidence satisfies me that:(a) the judgment debtor is living at 144 Robinsons Road, Lincoln;(b) the judgment debtor is living at that address with members of his familyincluding his father, Geoffrey Randolph Bryant;(c) the judgment debtor is evading service;(d) the judgment creditor does not have the means to effect personal serviceof the bankruptcy notice upon the judgment debtor; and(e) the bankruptcy notice cannot be promptly served upon the judgmentdebtor.[7] In these circumstances the requirements of r 6.8 are met and it is appropriatethat I dispense with personal service and order substituted service of the bankruptcynotice upon the judgment debtor in accordance with the application.Result[8] The orders that I make are as follows:(a) Personal service of the bankruptcy notice dated 18 October 2019 uponthe judgment debtor is dispensed with;(b) Service of the bankruptcy notice is to be effected by delivering thebankruptcy notice to Geoffrey Randolph Bryant at 144 RobinsonsRoad, Lincoln, Christchurch; and(c) The bankruptcy notice will be treated as served upon delivery of it toGeoffrey Randolph Bryant in accordance with paragraph (b) above.[9] The costs of this application are reserved.[10] There is reference in the application to a letter from Malley & Co to Mr Bryantof 12 December 2019. As that is not a document that must be served under the HighCourt Rules I make no order in respect of it._______________________O G PaulsenAssociate JudgeSolicitors:Malley & Co, Christchurch