Beynon v Burklakova

[2022] NZHC 2927

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000420

[2022] NZHC 2927

BETWEEN

DENISE BEYNON

Applicant

AND

IRENA BURKLAKOVA

Respondent

Hearing:	On the papers
Counsel:	D J C Russ for Applicant
Judgment:	8 November 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 November 2022 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BEYNON v BURKLAKOVA [2022] NZHC 2927 [8 November 2022]

[1]    The plaintiff commenced this proceeding on 21 September 2022 seeking to enforce an agreement pursuant to which the defendant is said to be obliged to transfer title for an accessway servicing a property now owned by the plaintiff at Worcester Street, Christchurch.

[2]    The defendant is thought to reside in a remote part of Russia but her exact whereabouts are unknown and personal service of the proceeding cannot be effected upon her.

[3]The plaintiff applies for orders for substituted service as follows:

aThat service on the defendant be effected by sending a copy of the statement of claim and notice of proceeding in this proceeding:

(i)by email to [email protected];

(ii)by courier to Burton and Partners (attention Nick Lovegrove), Level 3/10 Viaduct Harbour Ave, Auckland.

bThat service of the statement of claim and notice of proceeding be treated as served two days following the sending of the documents in the manner specified in paragraphs (a)(i) & (ii).

[4]    This application is made under r 6.8 High Court Rules 2016. Under that rule the Court may make an order dispensing with personal service of any document on a person or direct that a document will be treated as served once specified steps have been taken that are likely to bring the document to that person’s attention.

[5]    This application has been made on a without notice basis which is appropriate. To require service of the application upon the defendant would render it futile.

[6]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)(ii).

[7]The evidence satisfies me that:

(a)the defendant is not living in New Zealand, and is living overseas, most likely in Russia at an unknown address;

(b)the defendant has been represented by New Zealand solicitors in the firm Burton Partners;

(c)Burton Partners have had recent contact with the defendant and have forwarded documents to her to sign which have been returned;

(d)the plaintiff’s solicitors have, through Burton Partners, requested the defendant to instruct her solicitors to accept service on her behalf but she has not done so;

(e)it is impractical for the plaintiff to locate the defendant in Russia and effect personal service upon her; and

(f)service of the proceeding on Burton Partners is likely to bring the documents to the defendant’s attention.

[8]    In those circumstances I consider the grounds for making an order for substituted service are made out.

Result

[9]There shall be orders in terms of paragraph [1] of the notice of application.

[10]Costs in this application are reserved.

O G Paulsen Associate Judge

Solicitors:

Fletcher Vautier Moore, Christchurch Burton Partners, Auckland