Arranmore Developments Limited v Wang HC Auckland CIV 2009-404-5452

[2010] NZHC 1852

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-005452

BETWEEN  ARRANMORE DEVELOPMENTS LIMITED

Plaintiff

ANDPU WANG Defendant

Hearing:         12 October 2010

Appearances: K S Muston for plaintiff

No appearance by defendant

Judgment:      12 October 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Daniel Overton Goulding, PO Box 13017, Onehunga, Auckland 1643 for plaintiff

ARRANMORE DEVELOPMENTS LIMITED V WANG HC AK CIV 2009-404-005452  12 October 2010

[1]      This matter is before the court today on an application by the plaintiff for orders cancelling agreements for sale and purchase, giving judgment as to liability for damages, and directing an inquiry as to damages.

[2]      The proceeding relates to two agreements for sale and purchase of lots in a development at Point View Park, Flatbush School Road, East Tamaki, Auckland. The defendant entered into these agreements in December 2007.  They were due to be settled in May 2009.  The defendant failed to settle.

[3]      In  August  2009  the  plaintiff  issued  this  proceeding  seeking  specific performance, and for leave to be reserved to seek further orders consequent upon that decree.    That  proceeding  was  served  on  the  defendant  in  August  2009.    The defendant took no steps.   This court made an order for specific performance on

30 October  2009.    The  defendant  has  not  complied  with  the  order  for  specific performance.

[4]      The plaintiff has recently entered into agreements for resale of the two lots, both of which are conditional on the plaintiff obtaining an order cancelling the orders for specific performance, or cancelling the previous agreements, within the next week.

[5]      The plaintiff has been unable to serve its application.   Yesterday it filed a without notice application for substituted service, seeking orders that the application and its supporting affidavit be treated as having been served by reason of advertisements published in the public notices column of the New Zealand Herald on

7  October  2010  and  on  the  basis  that  the  documents  would  be  brought  to  the attention of the solicitor who had acted for the defendant on the purchase.   The application  is  supported  by  evidence  of  the  advertisement  in  the  New  Zealand Herald.

[6]      However, the affidavit of the process server filed in support of the without notice application indicates the possibility that the defendant is now in China.  The process server has been unable to find any trace of the defendant.   He has also

referred to the solicitor acting for the defendant on the agreements, but the only evidence on file as to that solicitor’s involvement indicates that the last contact was in June 2009.

[7]      Under r 6.8 the court can direct that steps be taken to bring the documents to the notice of the person to be served as an alternative to service, or dispense with service entirely (possible subject to conditions).

[8]      On  the  evidence  before  the  court  I  see  no  reason  to  believe  that  the advertisement placed on 7 October 2010 will necessarily have brought this hearing to the attention of the defendant.  Moreover, there is no evidence of any approach to the solicitor (who acted for the defendant in 2009) to establish whether or not he is in fact in contact with the defendant.

[9]      However, it is equally plain to me that the defendant has abandoned any interest in these properties and has no intention of settling the purchase.   For that reason I consider, having regard to the unsuccessful efforts made to contact the defendant and the passage of time since the agreements were to have settled, that this is an appropriate case to exercise the court’s power to dispense with service, and permit the plaintiff to proceed, at least with the application for cancellation of the agreements.   I suspect that any judgment for damages will be difficult to recover unless the defendant can be located, but that is a matter for the plaintiff.  However, before moving to that aspect of the application, I would like to see further evidence as to whether the solicitor formerly acting has any ongoing contact.  If so, I consider that the defendant ought to be given opportunity to respond to the application in respect of the inquiry into damages.

[10]     I make the following orders:

a)       Service of the plaintiff’s application for cancellation/rescission of the order for specific performance, for cancellation of the agreements for sale and purchase, and for judgment for liability for damages, is dispensed with;

b)Service  of  the  plaintiff’s  application  for  an  inquiry  into  damages and/or damages, and costs, is adjourned for further consideration on filing of evidence as to any continuing means of contact held by the solicitor formerly acting for the defendant;

c)        The  order  for  specific  performance  of  the  agreements  made  on

30 October 2009 is rescinded;

d)The agreements for sale and purchase referred to in paragraph 1 of the statement of claim are cancelled;

e)       Judgment is entered for the plaintiff against the defendant for liability for any damages suffered by the plaintiff by reason of the defendant’s breach of the agreements;

f)        The application for in inquiry into damages is adjourned to 2:15pm on

23 November 2010;

g)       The  application  for  substituted  service  of  the  application  for  an inquiry into damages will be reconsidered on a without notice basis on filing of further evidence as to the defendant’s former solicitor’s knowledge of the current whereabouts of the defendant, and/or any continuing property interests that the defendant may have in New

Zealand.

Associate Judge Abbott