Southpac 2015 Limited (in liquidation) v Dziamska

[2021] NZHC 2722

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2021-418-000020

[2021] NZHC 2722

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Dorota Katarzyna Dziamska

BETWEEN

SOUTHPAC 2015 LIMITED

(In Liquidation) Judgment Creditor

AND

DOROTA KATARZYNA DZIAMSKA

Judgment Debtor

Hearing:	On the papers
Counsel:	C R Vinnell for Applicant
Judgment:	12 October 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 October 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SOUTHPAC 2015 LTD (In Liquidation) v DZIAMSKA [2021] NZHC 2722 [12 October 2021]

[1]    The judgment creditor obtained a judgment against the judgment debtor in the High Court at Nelson on 7 January 2021. The judgment creditor has obtained the issue of a bankruptcy notice against the judgment debtor in respect of the judgment, but has been unable to effect personal service upon her. The judgment creditor applies for an order dispensing with personal service of the bankruptcy notice and all other documents filed in this proceeding (including any application for an adjudication order and summons to debtor) provided that any documents and a copy of the order dispensing with personal service of them are:

(a)left at the judgment debtor’s property at Kumara Junction with the current occupant along with instructions to bring them to the attention of the judgment debtor;

(b)left with the judgment debtor’s neighbour along with instructions to bring them to the attention of the judgment debtor; and

(c)sent to the judgment debtor by private message to her Facebook account.

[2]    The application is made in reliance upon r 6.8 High Court Rules 2016. It has been made on a without notice basis which is appropriate as to require service of the application upon the judgment debtor would defeat its purpose.

[3]Rule 6.8 provides:

Substituted service

(1)If reasonable efforts have been made to serve a document by a method permitted or required under these rules, and either the document has come to the knowledge of the person to be served or it cannot be promptly served, the court may---

(a)direct---

(i)      that instead of service, specified steps be taken that are likely to bring the document to the notice of the person to be served; and

(ii)     that the document be treated as served on the happening of a specified event, or on the expiry of a specified time:

(b)when steps have been taken for the purpose of bringing, or which have a tendency to bring, the document to the notice of the person on whom it is required to be served, direct that the document be treated 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 the party by whom the document is required to be served leave to proceed 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 the person to be served; or

(b)where that person was or is likely to have been on the happening of the event or the expiry of the time specified under subclause (1)(a)(ii).

[4]The evidence satisfies me of the following:

(a)The judgment debtor has a residential property at Kumara Junction.

(b)Following the issue of the bankruptcy notice the judgment creditor’s solicitors arranged for a process server to serve the bankruptcy notice on the judgment debtor at her residential address. The process server was able to confirm that the judgment debtor had been living at the address.

(c)The process server spoke to the male occupant of the property named Geordie who advised that the judgment debtor is currently residing in Poland with no estimated time for return to New Zealand but that he would provide an email address to the process server, but he has never done so.

(d)The process server also spoke to the occupant of a neighbouring property who advised that he was able to get a message to the judgment debtor.

(e)The judgment creditor’s solicitors have undertaken a Facebook search and have found a profile that is linked to the judgment debtor and the judgment debtor is active on that profile.

(f)The judgment creditor has no other contact details for the judgment debtor and other than as identified in the application no other viable methods of bringing the bankruptcy notice to her attention.

[5]    In these circumstances, I am satisfied the requirements of r 6.8 are met and it is appropriate that I dispense with personal service of the bankruptcy notice and order substituted service of it upon the judgment debtor in the manner set out in the application. I believe that effecting substituted service of the bankruptcy notice in the manner sought will bring the bankruptcy notice to the attention of the judgment debtor.

[6]    I am not prepared to order substituted service of all other documents in the proceeding in the same manner at this time. Circumstances change and it may be that personal service of those documents can be effected. I will reserve leave to the judgment creditor to apply for substituted service of further documents by memorandum provided that sets out any contact that the judgment creditor or its solicitors have with the judgment debtor, details of any further steps taken to locate her whereabouts, and any further information that may be relevant to the suitability of the orders sought.

Result

[7]The orders I make are as follows:

(a)Personal service of the bankruptcy notice issued in this proceeding and the sealed order for substituted service is dispensed with.

(b)Substituted service of the bankruptcy notice and sealed order for substituted service is to be effected upon the judgment debtor in the manner set out in paragraph 1 of the notice of application of 8 October 2021.

(c)Service of the documents shall be deemed to be effected three working days upon completion of all steps in paragraph 1 of the notice of application.

(d)I reserve leave to the judgment creditor to apply for substituted service upon the judgment debtor of any further documents in this proceeding by memorandum in the manner set out in para [6] above.

[8]The costs of this application are reserved.

[9]I reserve leave for any party to apply for further directions as may be required.

O G Paulsen Associate Judge

Solicitors:
Anthony Harper, Christchurch

NOTICE REQUIREMENT

The solicitors on the record for the parties are promptly to provide a copy of this Minute to their clients (r 5.43).