Commissioner of Police v Farquhar

[2022] NZHC 1173

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-28

[2022] NZHC 1173

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to sections 22 and 25 of the Act.

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRUCE SCOTT FARQUHAR

First Respondent

Trustees of the NALC RAHUG RAF TRUST, including Bruce Scott Farquhar

Second Respondent

FAITH FARQUHAR-CULLING
Third Respondent

KIWIBANK

Interested Party

Hearing:	(Determined on the Papers)
Counsel:	R P Bates for Applicant
Judgment:	25 May 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(as to substituted service)

COMMISSIONER OF POLICE v FARQUHAR [2022] NZHC 1173 [25 May 2022]

[1]    The applicant, the Commissioner of Police, applies for substituted service in respect of the trustees of the Nalc Rahug Raf Trust (the Trust). The first respondent, Bruce Scott Farquhar (Bruce), is a trustee of that Trust.

[2]    This proceeding concerns two properties – Mulford Street, Dunedin and Swansea Street in Middlemarch.

[3]    Bruce and his  parents,  Maurice  Roderick  Farquhar  and  Maureen  Margaret Farquhar are recorded as the registered proprietors of the Mulford Street property. Bruce and Faith Farquhar-Culling (the third respondent) are the registered proprietors of the Swansea Street property.

[4]    The applicant understands that the trustees of the Trust are the registered proprietors of the Mulford Street property, which along with the Swansea Street property, are the subject of the present application of the Commissioner of Police under the Criminal Proceedings (Recovery) Act 2009.

[5]    Apparently Bruce’s parents have died which would mean Bruce is the only remaining trustee of the Trust.

[6]    Bruce has not co-operated with the applicant in relation to the identity of the trustees, assuming others have been appointed.

[7]    The evidence shows that the applicant has had difficulty with the third respondent who is the co-owner of the Swansea Street property, whether the third respondent is a trustee of the Trust is not known. While the application for substituted service does not refer to the third respondent in her personal capacity, it would include her if she is a trustee.

[8]    As I noted in a Minute of 23 March 2022, given the trustees must act unanimously, it is a reasonable assumption that Bruce will be in contact with his co-trustees (if there are any).

[9]    Again, as recorded in the Minute of 23 March 2022, in the absence of Bruce providing instructions to his counsel as to the identity of the trustees or their whereabouts, an order for substituted service was likely.

[10]   I am satisfied, having regard to the evidence of the process server involved, that reasonable efforts have been made to serve the proceedings on the trustees and that the proceedings cannot promptly be served. That Bruce will not confirm that any of the trustees exist confirms the proceedings cannot be served on any further trustees who may have been appointed.

Orders

[11]I direct:

(a)Personal service on the trustees of the Nalc Rahug Raf Trust with the pleadings in this proceeding is dispensed with;

(b)Service upon the trustees of the Trust will be deemed to be effected upon a copy of the proceedings being provided to Bruce through his counsel;

(c)The documents will be treated as having been served on the trustees, the working day after the documents are provided to Bruce’s counsel;

(d)Leave is reserved to the applicant to seek that the order for substituted service extends to the third respondent if it becomes clear that she is not a trustee of the Trust. In that case, the applicant will need to provide evidence that Bruce is in contact with the third respondent.

[12]   On that basis, the telephone conference scheduled for 4.30pm on Thursday  26 May 2022 is vacated. I defer the conference as the applicant will need time to serve the proceedings on the trustees in accordance with this order.

[13]   For the avoidance of doubt, Bruce is directed to bring the proceedings to the attention of the trustees of the Trust who will be treated as having received the Court

papers in accordance with this order. The responsibility for seeing that the proceedings come to the attention of the trustees of the Trust, if there are any, rests with Bruce. Bruce has not suggested in response to my Minute of 23 March 2022 that he is not in contact with any further trustees of the Trust who may have been appointed.

[14]The new telephone conference is 12.30pm on Wednesday 6 July 2022.

Associate Judge Lester

Solicitors:
Crown Solicitor, Dunedin (for Applicant)