Bell v Lal - [2012] NZHC 1264

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5601 [2012] NZHC 1264

BETWEEN ELAINE CATHARINA BELL Plaintiff

ANDRAINA LAL First Defendant

ANDRENEE DEVINA SINA LAL Second Defendant

Hearing: 23 April 2012

Counsel: E St John for the Plaintiff
R Hollyman and K Simcock for the Defendants

Judgment: 7 June 2012

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 7 June 2012 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Counsel:
Mr E St John, Barrister, Auckland
Mr R Hollyman, Barrister, Auckland
Instructing Solicitors:
Mr S Palmer, Palmer & Associates Ltd, Solicitors, Auckland
Mr T Mullins, LeeSalmonLong, Solicitors, Auckland

BELL V LAL HC AK CIV-2011-404-5601 [7 June 2012]

[1] The plaintiff claims that the defendants are indebted to her in a sum of

$430,000 plus interest as the balance owing on a loan to the defendants of $500,000. The plaintiff obtained leave under r 6.28 of the High Court Rules to serve the proceeding on the defendants in Fiji. The defendants have appeared under protest to the jurisdiction of the New Zealand court. The defendants have now applied under rr 5.49 and 6.29 for an order dismissing or staying the proceeding.

Rules and principles

[2] Rule 6.29(2) provides:

If service of process has been effected out of New Zealand under rule 6.28, and the court's jurisdiction is protested under rule 5.49, and it is claimed that leave was wrongly granted under rule 6.28, the court must dismiss the proceeding unless the party effecting service establishes that in the light of the evidence now before the court leave was correctly granted.

[3] What this means, in practical terms, is that the application for leave, which originally proceeded without notice, is to be determined afresh in the light of all further evidence and submissions for both parties.

[4] The matters that are to be determined afresh are those set out in r 6.28. Rule

6.28(4) is as follows:

An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction under rule 6.29, including the place or country in which the person to be served is or possibly may be found, and whether or not the person to be served is a New Zealand citizen.

In broad terms, this imposes a duty of full disclosure of the matters referred to. Although there were some submissions as to the adequacy of disclosure by the plaintiff on the without notice application for leave to serve in Fiji, I am satisfied that no material issue arises in this regard.

[5] The principal enquiry arises under r 6.28(5), which is as follows:

The court may grant an application for leave if the applicant establishes that—

(a) the claim has a real and substantial connection with New Zealand;
and

(b) there is a serious issue to be tried on the merits; and

(c) New Zealand is the appropriate forum for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bell v Lal

Details

AGLC: Bell v Lal [2012] NZHC 1264
Case: [2012] NZHC 1264
Decision Date: 7 June 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, Elaine Bell, sought to recover a debt of $430,000 from the defendants, Andraina Lal and Andreena Devina Sina Lal. The defendants, who are Fijian citizens, contested the court's jurisdiction and applied to have the proceedings dismissed or stayed. The case hinges on the court's jurisdiction to hear the case against defendants who were served out of the jurisdiction in Fiji. The court had to determine if the application for leave to serve out of jurisdiction was correctly granted, considering the connection of the claim with New Zealand, the existence of a serious issue to be tried, and whether New Zealand is the appropriate forum for the trial. The court found that the plaintiff had established that the claim had a real and substantial connection with New Zealand, there was a serious issue to be tried, and New Zealand was the appropriate forum for the trial. Consequently, the court dismissed the defendants' applications and set aside their protests to jurisdiction. The court also set a timeline for the defendants to oppose the plaintiff's application for summary judgment and for the plaintiff to proceed with her application for a freezing order. The plaintiff is entitled to costs on a 2B basis for the defendants' applications and appearance in support of the summary judgment application, with other costs reserved for later determination.

Orders