High Court orders ‘substituted service’ against debtor who tries to evade court documents

The High Court has clarified the grounds for substituted service of court documents in a recent case.

In Blacks Fasteners Ltd v Baxter [2023] NZHC 60, Blacks Fasteners has made a creditor’s application asking the court to declare its debtor, Adam Baxter, bankrupt. Blacks Fasteners explained that it made several attempts to effect personal service upon Baxter, but they were unsuccessful. As a result, Blacks Fasteners asked the court to permit substituted service upon Baxter instead of personal service.

Substituted service

The court explained that the High Court Rules 2016 provides the grounds for authorising a substituted service. Suppose the party concerned made reasonable efforts to serve the document, but it could not be promptly served. In that case, the court may then direct the party involved to take steps that would likely notify the person to be served about the documents or treat the documents as served after a specified period or event.

Attempts to evade service

In this case, the court found that a process server, Debra-Anne Nield, had attempted to serve Baxter personally at his residence but was unsuccessful. She also spoke with Baxter on his mobile phone several times to inform him that she wished to serve the documents. On one of those occasions, Baxter promised to make arrangements to meet with Nield for service of the documents. However, all calls to his mobile phone were subsequently unanswered and unreturned.

The court was satisfied by the evidence that Baxter was aware that if he did not make arrangements to accept service of the documents, Blacks Fasteners would make an application for substituted service. The court also found that Baxter “appears to be evading service of the documents and requiring the judgment creditor to make further attempts at personal service would serve no useful purpose.”

The court has ultimately issued an order allowing for substituted service of court documents. This means that personal service of documents is not required, and they will be delivered to Baxter’s wife and sent to his email and mobile phone. The documents include the creditor’s application for an adjudication order, summons to the debtor, verifying affidavit, and the sealed order on this application.

Source: thelawyermag.com

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