Brun-Smits v Clough

[2014] NZHC 2880

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2014-412-000168 [2014] NZHC 2880

BETWEEN

MARINA BRUN-SMITS

Plaintiff

AND

CARRICK JOHN CLOUGH First Defendant

WHELAN CONSTRUCTIONS LIMITED Second Defendants

Hearing:	(On Papers)
Judgment:	19 November 2014

JUDGMENT OF WHATA J AS TO SERVICE

[1]      The plaintiff in this case seeks an order for substituted service on the first defendant, Carrick John Clough.   The background facts to the proceedings are, in short, a claim against Mr Clough and a Whelan Constructions Limited in respect of a house purchased at 17A Veint Crescent, Queenstown.  It is alleged that the house is a leaky home and that Mr Clough and Whelan are liable to the plaintiff in respect of the water damage.

[2]      An affidavit has been filed by the plaintiff setting out some of the background to  the  proceedings,  and  in  particular  purports  to  attach  email  correspondence between  her  ex-husband  and  Mr  Clough  together  with  correspondence  from Anderson Lloyd, Solicitors, Queenstown.  Regrettably, the emails are predominantly one-sided, that is, emails from her ex-husband to Mr Clough.  There is one email which purports at least or appears to be from John Clough wherein it records:

Any correspondence can be sent directly to my office address, which is..

BRUN-SMITS v CLOUGH [2014] NZHC 2880 [19 November 2014]

John Clough

16th Floor China Building

29 Queen’s Road Central

HONG KONG.

[3]      The    email    is    signed    off   John    Clough    and   the    email    address   is [email protected]

[4]      There is also a letter attached from Anderson Lloyd.  The letter confirms that they have been consulted by Mr Clough in his personal capacity and as a trustee of the Kwan Trust.   It records that they have reviewed the proceedings filed by the plaintiff and advised Mr Clough that they are grossly deficient in respect of both form and content. The letter goes on to state:

Mr Clough instructs that if you immediately discontinue the proceedings

against him then there will be no application of costs against you.  …

[5]      The letter also notes:

For the avoidance of doubt Mr Clough does not agree to being served by email and I am not authorised by him to accept service of any proceedings on his behalf.

Assessment

[6]      The letter from Anderson Lloyd Lawyers makes it plain that Mr Clough is aware of these proceedings but is actively taking steps to avoid service.  Whatever the shortcomings of the pleadings (and there are many) this Court will not permit Mr Clough to take shelter from these proceedings while at the same time issuing instructions to his lawyers to reject them.

[7]      On that basis I make the following orders for the purposes of substituted service:

(a)      There shall be an advertisement in a local Queenstown newspaper advertising the fact of these proceedings in a form to be approved by the Registrar.

(b)       A  copy  of  the  pleadings  be  served  on  the  legal  law  offices  of

Anderson Lloyd Law, Queenstown.

[8]      I direct that a copy of this judgment also be served on Anderson Lloyd.