PEPPER NEW ZEALAND (CUSTODIANS) LIMITED v JUANMIRY [2023] NZHC 3298

PEPPER NEW ZEALAND (CUSTODIANS) LIMITED v JUANMIRY [2023] NZHC 3298 [21 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-2742[2023] NZHC 3298BETWEEN PEPPER NEW ZEALAND(CUSTODIANS) LIMITEDApplicantAND KAKABRA JUANMIRYRespondentHearing: On the papersCounsel: S C D A Gollin and C M Hoeft for ApplicantJudgment: 21 November 2023JUDGMENT OF O'GORMAN JThis judgment was delivered by me on 21 November 2023 at 10.30 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Minter Ellison Rudd Watts, Auckland[1] The applicant, Pepper New Zealand (Custodians) Ltd (Pepper) applies fororders:(a) dispensing with personal service of a notice pursuant to s 119 of theProperty Law Act 2007 (PLA Notice) on the mortgagor,Kakabra Juanmiry; and(b) that service of the PLA Notice be effected in the manner describedbelow.[2] On or about 16 March 2022, the applicant as lender entered into a loanagreement with Mr Juanmiry, the respondent. The money and obligations owed bythe respondent under that agreement were secured by a mortgage over a propertysituated at 28 Robert Ross Place, Manurewa. Mr Juanmiry subsequently defaultedunder the terms of the loan agreement and Pepper wishes to serve a PLA Notice inrespect of that default.[3] During October 2023, a process server was asked to attend at the property totry to locate Mr Juanmiry or ask the occupants if they had his current residentialaddress or know his whereabouts. The process server attended the property on16 October 2023 and spoke with the occupants. They said they do not know who heis, nor do they have any contact details for him. They told the process server that theyhad arranged their occupation through another person, but they refused to provide anycontact information for that person.[4] The solicitors acting for Pepper conducted Companies Register searches forMr Juanmiry's name. There are two companies that list him as a current director andshareholder. Service agents were sent to those addresses, but the occupants said thatthey did not know Mr Juanmiry or his whereabouts.[5] Further attempts have been made to contact Mr Juanmiry at an email addressthat Pepper has for him, and on Facebook where there are two profiles with the nameof "Kakabra Juanmiry". There has been no response from the email or Facebookmessages.[6] Pepper does not hold any other contact details for the respondent.[7] A notice under s 119 of the Property Law Act must be served in accordancewith ss 353 and 359 of the Property Law Act. However, under s 357 an order may bemade dispensing with or directing another manner of service. Section 357 providesas follows:357 Orders dispensing with, or directing manner of, service(1) In any case referred to in sections 353 to 355,—(a) a court may, on an application for the purpose, make an order—(i) dispensing with service; or(ii) directing that a notice, cross-notice, or other document isto be given or served in a manner other than that providedfor in any of those sections or in any instrument; and(b) if the court makes an order under paragraph (a)(ii), the notice,cross-notice, or other document is adequately given or servedif it is given or served in accordance with the order.(2) This section overrides sections 353 to 355 and all other provisions ofthis Act, and applies despite anything to the contrary in—(a) any other enactment; or(b) any instrument or agreement.[8] I am satisfied that reasonable attempts have been made to achieve personalservice upon Kakabra Juanmiry. Pepper has attempted several different methods tomake contact with him, all of which have proven unsuccessful. It is appropriate thatan order be made dispensing with personal service and directing some alternativemeans of service which will likely bring the notice to his attention.[9] Pepper proposes that the following steps be taken to bring the notice ofMr Juanmiry's attention:(a) delivering a copy of the PLA Notice, together with a copy of the sealedorder, to the address of 28 Robert Ross Place, Manurewa and eitherleaving it with an adult occupant (along with a letter of instruction), oraffixing it together with the sealed order on the outside door (with aletter of instruction);(b) sending a copy of the PLA Notice, together with a copy of the sealedorder, to the email address that Pepper holds; and(c) sending a copy of the PLA Notice, together with a copy of the sealedorder, to the Facebook accounts with the username"Kakabra Juanmiry".[10] I also consider it appropriate to add to the above "publishing one advertisementin the public notices section of the New Zealand Herald".[11] Subject to the addition referred to in [10] above, I am satisfied that it isappropriate to make orders in terms of paras [1(a)–(c)] and [1(e)] of the originatingapplication, and I so order. Leave is reserved to apply for any further directions thatmay be required.____________________O'Gorman J