Collard v Mendoza

[2024] NZHC 346

NOTE: EMAIL ADDRESS IN PARAGRAPH 4 AND 8 HAVE BEEN REDACTED FOR PUBLICATION

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-485-618637

[2024] NZHC 346

IN THE MATTER OF

The Estate of MARY RUTH MENDOZA

BETWEEN

ROBYN JUNE COLLARD

Applicant

AND

KEVIN JOHN MENDOZA

Respondent

Hearing:	On the papers
Appearances:	A Gilchrist for the Applicant
Judgment:	28 February 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1]    The applicants, Mrs Robyn June Collard (Robyn) and Mr Graeme Robert Mendoza (Graeme), apply for substituted service orders in respect of an interlocutory application to transfer the proceedings from the High Court in Wellington to Auckland and to remove Kevin as the Administrator of the Estate of Mary Ruth Mendoza, the deceased mother of the parties (the deceased).

Background

[2]    Mrs Mendoza died on 22 July 2020, leaving a last Will dated 28 August 2002. Her Will was not admitted to Probate until 10 January 2023. Her sons Kevin and

COLLARD v MENDOZA [2024] NZHC 346 [28 February 2024]

Dennis Lionel Mendoza (Dennis) were appointed Executors. Dennis  died  in  August 2017, meaning at the time of the grant of Probate, Kevin was appointed the surviving Executor of the Will.

[3]    The  Estate’s  solicitors   wrote   to   Kevin’s   nominated   solicitors,   Andrew Lynn Lawyers, by letter dated 10 May 2023, which provided the Probate Order and advised as to the estate funds and realisation. However, Kevin did not respond to this nor a number of follow up communications from the applicant’s solicitors, and so the applicant filed an interlocutory application on 26 October 2023 to remove Kevin as executor, as well as transfer the proceedings to the Auckland High Court. This application was supported by two affidavits, one from Robyn and one from Graeme.

[4]    The applicant’s solicitor contacted Kevin by telephone on 22 January 2024. During this conversation, Kevin is reported to have become verbally abusive in response to being informed there was an application to remove him as Executor. He confirmed his email address as [ ], but otherwise stated his belief that he had done everything required of him and that the issue lay with the applicant’s solicitors.

[5]    On 30 January 2024, the applicant filed a memorandum seeking that the matter be enlarged by one month to allow for a without notice application for substituted service to be filed. This  was granted by Associate Judge Skelton via minute dated  30 January 2024.

[6]    The application for substituted service was filed on 22 February 2024, and was accompanied by a supporting memorandum, an affidavit from the applicant’s solicitor, and a draft substituted service order.

Submissions

[7]    In his memorandum dated 22 February 2024, the applicant submitted that Kevin, as Executor of Mrs Mendoza’s estate, had taken steps in relation to the obtaining of Probate of the estate, but had done nothing since. He further stated subsequent communications to the lawyers acting for him at the time had gone

unanswered.   He submitted that based on the telephone conference between their solicitor and Kevin, he believes he has done all that is necessary to be done.

[8]    The applicant submits that if the documents in these proceedings are forwarded to Kevin’s email address [ ] and Kevin’s solicitor’s email address [email protected] the documents are likely come to Kevin’s attention.

[9]    Consequently, he submits that a new first call date should be inserted, and an order made that substituted service be affected on Kevin as per their draft order. They also seek that the scheduled call in Chambers List be vacated, and appearances excused.

[10]   Additionally, they seek  leave  to  refer  to  the  affidavit  of  the  solicitor,  Mr Francis Hugh Stott. He submits the matter is either of a routine nature or a matter that should not disqualify him from being solicitor on the record, as his affidavit relates purely to service of the proceedings, and it was not anticipated that he may have to give evidence.

Relevant law

[11]Rule 6.8 of the High Court Rules 2016 provides that:

(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 to 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 of the expiry of the time specified under subclause (1)(a)(ii).

[12]   In  Afro  Continental  Nigeria  Ltd  v  Meridian  Shipping  co  SA1  the  English Court of Appeal held that substituted service ought to be ordered only where it is impracticable for the plaintiff to effect personal service and a supporting affidavit shows that efforts had been made for effect personal service.

[13]   Rule 13.5.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (ROCCC) states that a lawyer must not act in a proceeding if the lawyer may be required to give evidence of a contentious nature, whether in person or by affidavit, in the matter. Rule 13.5.2 further states that if, after a lawyer has commenced acting in a proceeding, it becomes apparent that they are to give evidence of a contentious nature, the lawyer must immediately inform the court and, unless the court directs otherwise, cease acting.

Analysis

[14]   It is clear that an order for substituted service should be made. Kevin’s solicitors  have  been  emailed  a  number  of  times  between  10  May   2023  and   3 August 2023, and Mr Stott’s affidavit makes clear that Kevin does not believe he is required to do anything further and that any issues need to be resolved by the applicants and their solicitors rather than himself. Consequently, reasonable efforts have evidently been made, and it is clearly impracticable for the applicant to effect personal service, given several months have now passed and the estate is yet to be distributed.

1      Afro Continental Nigeria Ltd v Meridian Shipping co SA [1982] 2 Lloyd’s Rep 241 (CA).

[15]   Kevin has confirmed his email address with Mr Stott, and had indicated he had received a prior document from the applicant. Forwarding the documents sought to be served on Kevin to his email address and his solicitors’ email address will therefore satisfy the requirement of serving the document at a place at which it is likely to come to the notice of the person served, as provided by r 6.8(2)(a) of the High Court Rules.

[16]   Lastly, in regards to r 13.5 of the ROCCC, it is clear that Mr Stott’s affidavit can be relied on, as this is the only supporting evidence available to the applicants other than the one-way email correspondence with Kevin. Rule 13.5.2 applies, and I direct that Mr Stott can continue acting for the applicants.

Conclusion

[17]The order for substituted service is granted in terms of the draft order filed.

Churchman J

Solicitors:

David Rice and Associates, Auckland for Applicant