Bi v She
[2022] NZHC 1421
•16 June 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-000223
[2022] NZHC 1421
BETWEEN RAN BI and LI LIU
Plaintiffs
AND
YURONG SHE
Defendant
Hearing: On the papers Counsel:
A J Summerlee for Plaintiffs
Judgment:
16 June 2022
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 16 June 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
BI and LIU v SHE [2022] NZHC 1421 [16 June 2022]
[1] In this proceeding, the plaintiffs seek specific performance of an agreement for sale and purchase of a property at Halswell. The application before me, however, is for orders:
(a)dispensing with personal service of documents in this proceeding upon the defendant; and
(b)that all documents in this proceeding be treated as served on the defendant when sent to her email address and the email address of her solicitor.
[2] The application is made pursuant to r 6.8 of the High Court Rules 2016 which 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).
[3]To obtain an order for substituted service it is generally necessary to show:
(a)that reasonable efforts have been made to serve the document/s;
(b)that either the document/s cannot be promptly served or have come to the knowledge of the person to be served; and
(c)that the proposed method of substituted service would be likely to bring the document/s to the notice of the person to be served.
[4]Here, in terms of these three matters, I note as follows.
Reasonable efforts to serve
[5] The plaintiffs do not have an address at which the defendant can be served. Her place of residence is recorded on the statement of claim as the People’s Republic of China and her occupation as unknown. The plaintiffs purchased the Halswell property at auction. The auction was conducted remotely on the Zoom platform. The plaintiffs have never spoken with the defendant in person and have only ever communicated via the real estate agent and the solicitor who has acted for her on the transaction.
[6] The plaintiffs’ solicitors have attempted to locate the defendant by doing searches of Land Information New Zealand and the Companies Office, but those efforts have not produced any satisfactory up to date address for service on the defendant.
[7] In addition, the plaintiffs’ solicitors have contacted the defendant’s solicitor and asked if he will accept service on the defendant’s behalf. The defendant’s solicitor has not responded to that request.
[8] I am satisfied the plaintiffs have made reasonable efforts to locate the defendant to serve the documents upon her.
Documents cannot be promptly served
[9] The documents cannot be promptly served on the defendant as her whereabouts are unknown. I am also satisfied it is likely the defendant will be aware, through her solicitors, that the plaintiffs wish to serve proceedings upon her, but she has not authorised them to accept service on her behalf.
Would service in the manner proposed bring the bankruptcy notice to the defendant’s notice?
[10] It is proposed to serve documents upon the defendant by way of email to her email address and to the email address of her solicitor. The defendant’s email address was recently active as her solicitor corresponded with her using it. It is likely, then, that if the documents are served in the manner proposed they will come to the defendant’s attention.
[11] It is appropriate in these circumstances that an order for substituted service be made.
Result
[12] I dispense with personal service of this proceeding upon the defendant and direct substituted service of the following documents upon her:
(a)statement of claim;
(b)notice of proceeding;
(c)application for summary judgment;
(d)affidavit/s in support of application for summary judgment;
(e)the sealed order made on this application.
[13] The documents listed above shall be served upon the defendant in the following manner:
(a)by emailing the documents to the defendant at the email address in para 1(b) of the notice of application;
(b)by emailing the documents to the defendant’s solicitor at the email address in para 1(b) of the notice of application.
[14]Service upon the defendant shall be deemed to be effected upon completion of
(a) and (b) above.
[15] I reserve leave to the plaintiffs to apply for substituted service upon the defendant of any further documents in this proceeding by way of memorandum.
[16]Costs are reserved.
O G Paulsen Associate Judge
Solicitors:
Parry Field Lawyers, Christchurch
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