Body Corporate for St Tropez South v Q Tech Water Proofing Pty Ltd
[2014] NZHC 1123
•26 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-136 [2014] NZHC 1123
IN THE MATTER OF the Trans-Tasman Proceedings Act 2010 BETWEEN
BODY CORPORATE FOR ST. TROPEZ SOUTH
Applicant
AND
Q TECH WATER PROOFING PTY LTD First Respondent
R KAY
Second Respondent
Hearing: On the papers Appearances:
P J Morris for Applicant
No appearance for RespondentsJudgment:
26 May 2014
JUDGMENT OF ASSOCIATE JUDGE BELL
This judgment was delivered by me on 26 May 2014 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar
Solicitors:
Stace Hammond (Philip Morris), Hamilton, for Applicant
BODY CORPORATE FOR ST. TROPEZ SOUTH v Q TECH WATER PROOFING PTY LTD [2014] NZHC
1123 [26 May 2014]
[1] The applicant, the Body Corporate for St Tropez South, obtained a judgment for AUD$414,798.53 plus costs against the respondents in the District Court of Queensland, Southport Registry, on 20 September 2013. The second respondent is the director of the first respondent, an Australian company. The body corporate registered the judgment in this court on 23 January 2014 under ss 56 and 57 of the Trans-Tasman Proceedings Act 2010.
[2] Under s 62 of the Trans-Tasman Proceedings Act, the applicant is required to give notice of the registration to every liable person. Under the definition in s 4 of that Act, both respondents are liable persons. Under s 62(3), the notice must be given within 15 working days of this court registering the Australian judgment, or within such longer period as this court considers appropriate. Under s 62(2), the notice must be given in a manner prescribed by regulations.
[3] The applicant applies for an extension of time to give the notice of registration under s 62(3), and applies for substituted service under r 6.8 of the High Court Rules.
[4] The relevant provisions of the Trans-Tasman Proceedings Regulations and
Rules 2013 are regs 5 and 19:
5How these regulations and rules relate to New Zealand court's or tribunal's general procedural rules
(1) Every proceeding or application to which the Act applies is governed—
(a) by the general procedural rules of the court or tribunal in which the proceeding or application is commenced or made; and
(b) by the modifications (if any) to those procedural rules that these regulations and rules make for that proceeding or application.
(2) Forms or requirements that these regulations and rules prescribe must therefore be used or applied with general forms or requirements in those general procedural rules for documents filed, for example,—
(a) the memorandum at the end of the first document filed by a party:
(b) the memorandum (at the end of an originating application) relating to filing and address for service:
(c) the general heading for documents filed in a proceeding:
(d) the notice of opposition to an originating application:
(e) the requirements for affidavits in reply. (3) Subclause (2) does not limit subclause (1).
19Regulation prescribing form of, and manner of giving, notice of registration of Australian judgment
(1)The notice of the registration of the Australian judgment that an entitled person must under section 62 of the Act give to every liable person must be in form 7.
(2) The following is prescribed under section 62(4)(b) of the Act as the manner in which a notice of that kind must under section 62(2)(b) of the Act be given, namely the notice must be given,—
(a) if the liable person is an individual,—
(i) by its being delivered by registered post (which has the extended meaning given to it by subclause (3)) to the address that is the liable person's last known place of residence or principal place of business; or
(ii) by its being handed to, and accepted by, that person; or
(iii) if that person does not accept it when it is handed to him or her, by its being put down in that person’s presence and brought to his or her attention; or
(iv) by it being otherwise received in writing by that person:
(b) if the liable person is a company under the Companies Act 1993, by its being given to or served on the company in a manner provided for in section
387(1)(a), (b), (c), (d) or (f) or 388(1)(b) or (c) of that Act:
(c) if the liable person is an overseas company, by its being given to or served on the company in a manner provided for in section 389(1)(a), (b), (c), or (d), or 390(1)(b) or (c) of the Companies Act 1993:
(d) if the liable person is any other body corporate, by its being given to or served on the body corporate in a manner in which it could be given or served if the body corporate were a company:
(e) if the liable person is the Crown, by its being delivered to, or received in writing by, the chief executive of the relevant government department or office, or an agent of that chief executive, at the head office of the department or office, and in a manner specified in paragraph (a)(i) to (iv).
(3) Registered post, in subclause (2)(a)(i), includes any service that—
(a) provides a system of recorded delivery; and
(b) is similar in nature to, or of the same nature as, a registered post service provided by a person registered as a postal operator under the Postal Services Act 1998.
[5] Enquiries by process servers instructed by the applicant’s New Zealand solicitors show that Mr Kay, the second respondent, has been living at 12 Houston Place, Glenfield, Auckland, a property owned by Mr Rex Vaillant. Attempts to give the notice to Mr Kay in person at that address have been unsuccessful. He has not been present when a process server has visited. He has not co-operated in proposals by the process servers to arrange service by agreement. Mr Kay appears to be evading service.
[6] The applicant has shown that it has not been able to give the notice to either respondent within the 15 working days allowed under s 62(3) despite reasonable efforts. It is appropriate to extend time under s 62(3)(b). The time for giving the notice is extended by a further 20 working days from the date of this decision.
[7] Directions on giving notice to Q Tech Water Proofing Pty Ltd are straightforward. As it is an overseas company, reg 19(2)(c) directs that the notice of registration may be given in any manner provided in s 389(1)(a), (b), (c) or (d), or s 390(1)(b) or (c) of the Companies Act 1993. Under s 389(1)(d), the court having
jurisdiction in a proceeding may give directions as to service in New Zealand of a document in the proceeding. A notice of registration of an Australian judgment under the Trans-Tasman Proceedings Act is a document in a legal proceeding under s
389. Accordingly, the court has jurisdiction to direct how the notice of registration should be given to Q Tech Water Proofing Pty Ltd. An appropriate way is to give the notice and a copy of this order to Mr Rex Vaillant.
[8] The question of substituted service on Mr Kay personally is less straightforward. The difficulty arises this way. Section 62(2)(b) provides that a notice of registration must be given in the manner prescribed in regulations. Regulation 19(2)(a) sets out how individuals must be served. It provides only four ways by which an individual may be given a notice of registration. There is no provision in reg 19 for the court to direct the giving of a notice to an individual,
unlike its sub-clauses that allow the court to direct service on bodies corporate.1 It is
therefore arguable that the court has no jurisdiction to direct how a notice of registration may be given to an individual, because reg 19 is an exclusive code as to how this may be done.
[9] The result is highly inconvenient. Australian judgment debtors who have come to New Zealand may be less than co-operative with steps taken to enforce the judgment against them in New Zealand, but there is seemingly no way to deal with judgment debtors who successfully avoid receiving a notice. It also runs contrary to one of the purposes of the Trans-Tasman Proceedings Act – to minimise existing
impediments to enforcing Australian judgments and regulatory sanctions.2 Under the
regime for registration of judgments under the Reciprocal Enforcement of Judgments Act 1934, the court can give directions as to service of notice of registration of a judgment under that Act.3 It would be odd if the new provisions concerning Australian judgments were less effective than those of the Reciprocal Enforcement
of Judgments Act they have replaced.
1 Sections 387(1)(d) and 389(1)(d) the Companies Act 1993 provides for a court to give service directions and are expressly referred to in reg 19(2)(b) and (c).
2 Trans-Tasman Proceedings Act 2010 s 3(1)(b).
3 High Court Rules, r 23.18(2).
[10] There is a way around the problem. The argument above assumes that the provisions of reg 19 displace all the rules for service under the High Court Rules, including the rules for substituted service. That needs closer scrutiny. Regulation 5 provides for proceedings under the Trans-Tasman Proceedings Act to be governed by the general procedural rules of the court (in this case, the High Court Rules) subject to modifications made by the regulations. Has the substituted service rule been modified under reg 5(1)(b) or does it lie unmodified inside reg 5(1)(a)?
[11] A substituted service rule provides for secondary service. It may be used if the methods of personal service allowed under the rules (“primary service rules”) have not been effective. That can be seen in r 6.8 of the High Court Rules:
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.
[12] This distinction between primary and secondary service rules applies to giving notice of registration under the Trans-Tasman Proceedings Act. Regulation
19 sets out only primary service rules. The Australian judgment creditor can give notice under any of those rules immediately. Those rules take the place of the primary service rules in Part 6 subpart 1 of the High Court Rules, but they do not take the place of secondary service rules. Regulation 19, which deals only with primary service rules, does not modify r 6.8, a secondary service rule, which continues to apply by virtue of reg 5(1)(a). Applying the distinction between primary and secondary service rules avoids the inconvenience of absconding Australian judgment debtors avoiding service and meets the statutory purpose of minimising impediments to enforcing Australian judgments in New Zealand. Accordingly the court can consider the substituted service application.
[13] As to the merits, the applicant has satisfied the requirements of r 6.8. The rule requires an applicant to make reasonable efforts to give notice by a primary method of service, not every method. The applicant could have given the notice using registered post, addressed to Mr Kay, c/- Mr Vaillant, 12 Houston Place, Glenfield, Auckland, but that is irrelevant. It tried to do better by arranging personal delivery of the notice to Mr Kay. Its efforts were reasonable. I direct that giving the notice to Mr Kay may be carried out by giving the notice and a copy of this order to Mr Vaillant.
[14] In summary, I order that:
(a) the time for giving the notice of registration of judgment to both respondents is extended by a further 20 working days from the date of this decision;
(b) the notice of registration may be given to Q Tech Water Proofing Pty Ltd by giving the notice to Mr Rex Vaillant together with a sealed order as to the time for service and substituted service; and
(c) the notice of registration may be given to Mr Kay by giving the notice to Mr Rex Vaillant together with a sealed order as to the time for service and substituted service.
Associate Judge Bell
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