AIC Trustees Limited v Weerts

[2023] NZHC 375

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000569

[2023] NZHC 375

UNDER

the Trust Act 2019

IN THE MATTER

of an application for retirement and replacement of trustee

BETWEEN

AIC TRUSTEES LIMITED

Applicant

AND

TREVOR WEERTS

Respondent

Hearing:	On the papers
Counsel:	S Bevin for Applicant
Judgment:	2 March 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 2 March 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AIC TRUSTEES LTD v WEERTS [2023] NZHC 375 [2 March 2023]

[1]                 The applicant is the sole trustee of the AIC Trust. The respondent is the settlor and a beneficiary of the Trust. The applicant commenced this proceeding seeking orders for its removal as a trustee and the appointment of an independent trustee in its place. It also seeks incidental orders in respect of costs.

[2]                 When the proceeding  was filed, directions as to  service were sought.   On    6 December 2022 I directed that service was to be effected only upon the respondent. However, the applicant has been unable to serve the respondent and now applies for an order for substituted service.

[3]                 The respondent resides in Australia and the documents for service were sent to an agent in Australia. The agent was Risk & Security Management, a firm that operates, amongst other things, as process servers. The evidence is that attempts have been made to serve the respondent at his last known address on six occasions at different times of the day. On each occasion no-one appeared to be home and service could not be effected. Calling cards were left requesting the respondent to contact the agent. The process servers were also provided with a mobile telephone number for the defendant and they made attempts to contact him on that number. On one occasion, when a call was answered, the agent explained the reason for the call but the respondent immediately terminated the call. Subsequent calls to the same number were diverted to voicemail.

[4]                 The application for substituted service is made in reliance upon r 6.8 of the High Court Rules 2016. It has been made on a without notice basis, which is appropriate, as to require personal service of this application on the respondent would likely be futile and defeat the purpose of the application itself.

[5]Rule 6.8 provides:

6.8Substituted 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).

[6]                 The applicant seeks an order that it may effect substituted service upon the respondent by sending the documents to him at his email address (which he has used to correspond with the applicant’s solicitors) and by sending a text message to his mobile telephone number that the documents have been emailed to him by way of substituted service and with details of the applicant’s solicitors where he may obtain further copies.

[7]The evidence filed in support of the application satisfies me of the following:

(a)the applicant has made reasonable efforts to effect personal service upon the respondent;

(b)the respondent is likely aware of the attempts to serve the documents but has taken no steps to accept them;

(c)that whilst calls have been made to the respondent’s mobile telephone number, the calls are now being diverted;

(d)it is likely the applicant is evading service of the documents; and

(e)the documents for service are likely to come to the respondent’s attention if served in the manner proposed in the without notice application.

[8]                 Accordingly, I am satisfied it is appropriate to make an order for substituted service.

Result

[9]I make the following orders:

(a)personal service upon the respondent of the following documents in this proceeding is dispensed with;

(i)letter to the respondent enclosing the proceedings;

(ii)notice of proceeding dated 1 December 2022 and notice giving prescribed information for a respondent served in Australia;

(iii)statement of claim dated 1 December 2022;

(iv)affidavit of Wendy Jeanne Weerts in support of application for removal and replacement of trustee;

(v)the sealed order authorising substituted service.

(b)Service of the documents above shall be effected by:

(i)transmitting a copy of the documents by email to the respondent at his last known email address, as set out in the without notice application; and

(ii)transmitting a text message to the respondent’s mobile telephone number, as set out in the without notice application, stating that the proceedings have been served by email in accordance with an order of this Court and that further copies of the documents can be obtained by contacting the applicant’s solicitors (along with contact details).

[10]Service shall be deemed to be effected upon completion of the steps in (a) and

(b) above.

[11]Costs on this application are reserved.

O G Paulsen Associate Judge

Solicitors:
Cavell Leitch (H M Cassin), Christchurch