Nuttall Properties Limited v Corcoran

[2023] NZHC 3763

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-647

[2023] NZHC 3763

IN THE MATTER

of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of Michael Denis Corcoran

BETWEEN

NUTTALL PROPERTIES LIMITED

Judgment Creditor

AND

MICHAEL DENIS CORCORAN

Judgment Debtor

Hearing:	(On the papers)
Counsel:	C M Hanafin for Judgment Creditor
Judgment:	18 December 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(substituted service)

NUTTALL PROPERTIES LIMITED v CORCORAN [2023] NZHC 3763 [18 December 2023]

[1]        The judgment creditor seeks an order for substituted service against the judgment debtor in respect of a bankruptcy notice.

[2]        The methods of proposed substituted service are conventional enough, that is, an order dispensing with personal service is sought on the basis service is deemed to have been effected by serving the bankruptcy notice via the judgment debtor’s email address and on his son who is in contact with the judgment debtor.

[3]        So much is not controversial save that the material filed in support of the substituted service application suggests, and I put it no higher than that, that the judgment debtor is in Australia.

[4]        If the judgment debtor resides in Australia then the judgment creditor requires leave under s 17(3) of the Insolvency Act 2006 to serve the judgment debtor outside of New Zealand.

[5]        Associate Judge Bell in Westpac New Zealand Limited v Boulton, set out his approach to considering an application for leave to serve a bankruptcy notice outside of New Zealand.1 While an application for leave has not been made, I take such an application to be implicit in what the judgment creditor seeks to achieve.

[6]        The circumstances giving rise to the judgment debt are squarely connected to events in New Zealand. Accordingly, and albeit perhaps out of an abundance of caution, there is an order that the bankruptcy notice in this proceeding may be served out of New Zealand (if such leave turns out to have been required).

[7]        Further, I am satisfied that having regard to the reports of process servers involved, that reasonable efforts have been made to serve the bankruptcy notice on the judgment debtor and that it cannot be served properly.

1      Westpac New Zealand Ltd v Boulton [2014] NZHC 693; (2014) 22 PRNZ 183.

[8]        I am further satisfied that the following directions which I make represent the method of service likely to bring the bankruptcy notice to the attention of the judgment debtor.

Orders

[9]        I direct personal service of the judgment debtor with the bankruptcy notice is dispensed with.

[10]      Service of the judgment debtor will be deemed to be effected upon the completion of the following two steps:

(i)emailing the bankruptcy notice and a copy of this judgment to the email address given at paragraph 1.1(a) of the application for substituted service dated 14 December 2023; and

(ii)personally serving the bankruptcy notice and copy of this judgment on the judgment debtor’s son named in paragraph 1.1(b) of the application for substituted service dated 14 December 2023.

[11]      The documents will be treated as served, three working days after the completion of both steps set out in [10] above.

[12]      The application for substituted service 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 that the judgment debtor can still not be located or attaching evidence as to subsequent difficulties of service).

Costs

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

[14]      The orders for substituted service can be sealed upon counsel for the judgment creditor by way of memorandum providing the certificate that is required in relation to a without notice application, such having been omitted from the application dated 14 December 2023. That certificate can be found at paragraph 5 of Form G32, part of Schedule 1 to the High Court Rules 2016.

Associate Judge Lester

Solicitors:
MDS Law, Christchurch (for Judgment Creditor)

Copy to counsel:
J Moss and C M Hanafin, Barristers, Christchurch (for Judgment Creditor)

Copy to:
The Judgment Debtor