BLACKS FASTENERS LTD v BAXTER [2023] NZHC 60

BLACKS FASTENERS LTD v BAXTER [2023] NZHC 60 [2 February 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-000400[2023] NZHC 60UNDER the Insolvency Act 2006IN THE MATTER of the bankruptcy of Adam BaxterBETWEEN BLACKS FASTENERS LIMITEDJudgment CreditorAND ADAM BAXTERJudgment DebtorHearing: On the papersCounsel: G D Trainor for ApplicantJudgment: 2 February 2023JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 2 February 2023 at 12.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The judgment creditor has made a creditor's application for an orderadjudicating the judgment debtor (Mr Baxter) bankrupt. Attempts to effect personalservice of the creditor's application and related documents (the documents) onMr Baxter have proved unsuccessful. The judgment creditor applies for an orderdispensing with personal service and authorising substituted service of the documentsupon Mr Baxter.[2] The application is made in reliance upon r 6.8 High Court Rules 2016. It hasbeen made on a without notice basis, which is appropriate, as to require personalservice of this application on the judgment debtor would be futile and defeat thepurpose of the application itself.[3] 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 personto be served; and(ii) that the document be treated as served on the happeningof a specified event, or on the expiry of a specified time:(b) when steps have been taken for the purpose of bringing, orwhich have a tendency to bring, the document to the notice ofthe person on whom it is required to be served, direct that thedocument be treated as served on that person on a specifieddate:(c) subject to any conditions that the court thinks just to impose,dispense with service of a document on a person and give to theparty 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 ofthe person to be served; or(b) where that person was or is likely to have been on thehappening of the event or the expiry of the time specified undersubclause (1)(a)(ii).[4] The evidence filed in support of the application satisfies me of the following:(a) The judgment creditor instructed a process server, Debra-Anne Nield,to serve the documents upon Mr Baxter.(b) Mr Baxter is known to Ms Nield from the service of previous courtdocuments and difficulties have been experienced arranging serviceupon Mr Baxter in the past.(c) Following receipt of the documents, Ms Nield has attempted to serveMr Baxter personally at his residential address but she has beenunsuccessful. She has also spoken to Mr Baxter on his mobile phoneso that he is aware that she wishes to serve the documents upon himand the nature of them. On one of those occasions Mr Baxter promisedto make arrangements to meet with Ms Nield for service of thedocuments, but subsequently all calls to his mobile phone have beenunanswered and were not returned.(d) Ms Nield has also sent text messages to Mr Baxter which have not beenresponded to.(e) In addition, an email was sent to Mr Baxter's email address asking himto arrange a time and place to accept the documents, but this was alsonot responded to.(f) Mr Baxter has been made aware that if he does not make arrangementsto accept service of the documents, an application for substitutedservice would be made.(g) Mr Baxter appears to be evading service of the documents and requiringthe judgment creditor to make further attempts at personal servicewould serve no useful purpose.[5] The judgment creditor seeks orders that substituted service of the documentsbe effected by delivering them to Mr Baxter's wife, or at their residence, by sendingthe documents to him by email and text message to his mobile phone. I am satisfiedthat if those steps are taken the documents will come to his attention.Result[6] I make the following orders:(a) Personal service upon Mr Baxter of the following documents in thisproceeding is dispensed with, namely:(i) creditor's application for an adjudication order;(ii) summons to debtor;(iii) verifying affidavit;(iv) the sealed order on this application.(b) Service of those documents in [6(a)] shall be effected by:(i) leaving the documents with the judgment debtor's wife, GillianBaxter, at their residential address (as set out in the affidavit ofMs Nield) or if Mrs Baxter does not accept service of thedocuments, by leaving them in the letterbox of the residence;and(ii) by forwarding copies of the documents as an attachment to anemail sent to Mr Baxter at his email address (as set out in theaffidavit of Ms Nield); and(iii) by forwarding a text message to Mr Baxter at his mobile phonenumber (as set out in the affidavit of Ms Nield) which shall readas follows:Blacks Fasteners Limited has issued proceedings against youin the High Court at Christchurch under CIV-2022-409-400seeking an order adjudicating you bankrupt. The High Courthas made orders dispensing with personal service of courtdocuments relating to that application upon you andauthorising substituted service of those documents.Substituted service of the documents has been effected byleaving them at your residential address on [date to beentered] and by sending them to your email address on [dateto be entered]. Service of the documents upon you is deemedto have been completed on the day you are sent this textmessage, that is [date to be entered].Black Fasteners Limited's application to adjudicate youbankrupt will be called before the High Court at Christchurchat 10.00 am on Thursday 9 March 2023.Blacks Fasteners Limited is represented by Gregory DavidTrainor of the law firm MacLean & Associates Lawyers,PO Box 42-123, Christchurch, C/o Aorangi CreditManagement (2016) Ltd, Phone: (03) 343 9988. Copies ofthe documents can be obtained from the solicitor or from theoffices of the High Court at Christchurch.[7] The costs of this application are reserved.[8] I also reserve leave for either party to apply for further directions as may berequired._______________________O G PaulsenAssociate JudgeSolicitors:MacLean & Associates Lawyers, Christchurch