Ahipara Developments Limited v Hape

[2014] NZHC 384

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-1269 [2014] NZHC 384

BETWEEN

AHIPARA DEVELOPMENTS LIMITED

Plaintiff

AND

SHONTAYNE EDWARD HAPE AND LIANA ETTA HAPE

Defendants

Hearing:	6 March 2014
Counsel:	G J Kohler QC for Plaintiff No appearance for defendants
Judgment:	6 March 2014

JUDGMENT AND FURTHER DIRECTIONS OF WILLIAMS J

[1]      Mr Kohler QC for the plaintiff seeks further or varied orders consequent on the judgment of Brewer J on 29 November 2011.  In that judgment Brewer J granted the applicant’s specific performance on an agreement for sale and purchase dated

9 January 2007.  Leave was specifically reserved for the plaintiff to seek further or varied orders including orders for damages if that might prove necessary. As matters have transpired, such variation has proved necessary.

[2]      The plaintiff needs to serve this application on the defendants.   They are resident overseas – it is thought, in France.   Mr Kohler argued before me that an order for substituted service made by Associate Judge Faire (as he then was) on 30

August  2011  in  relation  to  the  initial  proceedings  still  had  effect.    That  order provided that service on the defendants could be effected through their sometime solicitor,  Mr  Ropati.     Mr Kohler  argued  that  the  current  applications  were

encompassed within that order.

AHIPARA DEVELOPMENTS LIMITED v HAPE & ANOR [2014] NZHC 384 [6 March 2014]

[3]      Looking at the terms of that order, I do not think that is correct.   Rather, substituted service seemed to be specifically keyed to the proceedings as then constructed and without an application for damages in substitution for specific performance.  In any event, the order was made over two and a half years ago and it seems to me that there is a real risk that any nexus between Mr Ropati and the defendants could be ended by now, even if it existed at the time of the order.  I do not think it is just to make the orders sought in reliance upon service on Mr Ropati given the effluxion of time.

[4]      I understand in any event that Mr Ropati was not served with the urgent application until 26 February because he had moved offices.

[5]      Mr Kohler now accepts the need to apply for further orders for substituted service,  either upon  Mr Ropati or other parties with ongoing connection to the defendants.

[6]      The matter is adjourned for two months to the next Duty Judge list after that period for the appropriate applications to be made.

Williams J