Affordable Car Rentals NZ Limited v Bisset

[2020] NZHC 1780

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000103

[2020] NZHC 1780

BETWEEN

AFFORDABLE CAR RENTALS NZ LIMITED
Plaintiff

AND

SEAN BISSET

Defendant

Hearing:	Determined on the papers
Counsel:	D L Bell and P A Cowey for Plaintiff
Judgment:	22 July 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 22 July 2020 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AFFORDABLE CAR RENTALS NZ LTD v BISSET [2020] NZHC 1780 [22 July 2020]

The application

[1]                 The plaintiff has commenced this proceeding to recover a debt alleged to be owing by the defendant under a term loan agreement of 15 June 2018. Having tried but failed to serve the defendant, the plaintiff applies for orders dispensing with personal service and authorising substituted service of the statement of claim, notice of proceeding and initial disclosure list (the documents) upon the defendant.

The Rules

[2]                 The application is made in reliance upon r 6.8 High Court Rules. It has been made on a without notice basis as to require service upon the defendant would clearly defeat the purpose of the application and cause undue delay and prejudice to the plaintiff.1

[3]Rule 6.8 provides:

6.8      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.

1      High Court Rules 2016, r 7.46(3)(a).

(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 before me is contained in affidavits of Judith Louise Capill, Verdi Johannus Cornelius van Beek and Jodi Cherie Wareing. The evidence satisfies me:

(a)the defendant was in dispute with the plaintiff prior to the issue of the proceeding and aware of the likelihood of legal action being taken against him;

(b)attempts have been made to serve the defendant at addresses provided by him on the term loan agreement, but the defendant is no longer at those addresses;

(c)attempts have been made to serve the defendant at an address he provided on the Companies Register but he is not at that address;

(d)the plaintiff has two cellphone numbers for the defendant and attempts have been made to reach him on those cellphone numbers to arrange for service of the proceeding, but messages left have not been returned;

(e)the plaintiff has an email address for the defendant and has communicated with him at that address. Most recently, an email was sent by the plaintiff’s solicitors requesting the defendant to make contact to arrange for service of the documents. Although it appears the email was successfully delivered there has been no response from the defendant;

(f)the documents cannot be personally served upon the defendant; and

(g)the plaintiff has made reasonable efforts to serve the defendant without success.

[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 and order substituted service of the documents upon the defendant.

[6]                 The plaintiff has requested that substituted service be effected in the following manner:

(a)by emailing the documents to the defendant at his personal email address; and

(b)texting the defendant on his Australian cellphone number advising him that the email has been sent.

[7]                 I consider these are the appropriate means to effect substituted service and are likely to bring the documents to the attention of the defendant.

Result

[8]The orders that I make are as follows:

(a)Personal service of the documents is dispensed with;

(b)Service of the documents along with the sealed order made on this application is to be effected by:

(i)emailing them to the defendant’s personal email address (the address being that address stated in the amended notice of interlocutory application for substituted service); and

(ii)texting the defendant on his Australian cellphone number (as set out in the amended notice of application) advising him that these Court proceedings have been issued by the plaintiff and

that a copy of the documents and the order made on this application have been sent to his personal email address.2

(c)Service of the documents shall be deemed to be effected three working days after completion of the steps in [8](b) above.

[9]The costs of this application are reserved.

[10]              I reserve also leave for either party to apply for further directions as may be required.

O G Paulsen Associate Judge

2      I note, if the defendant is overseas this proceeding may be served out of New Zealand without leave under High Court Rule 6.27.