Dunstan v Genesis Energy Limited

[2024] NZHC 3800

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-24

[2024] NZHC 3800

BETWEEN

ANTHONY ROBERT DUNSTAN

Plaintiff

AND

GENESIS ENERGY LIMITED

First Defendant

FRANK ENERGY LIMITED

Second Defendant

Hearing:

(On the papers)

Counsel:

A R Dunstan – self-represented Plaintiff

C S Fleetwood-Smith and H L Clarke for First and Second Defendants

Judgment:

12 December 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application for leave to appeal)

DUNSTAN v GENESIS ENERGY LIMITED [2024] NZHC 3800 [12 December 2024]

[1]    On 26 July 2024, I issued a judgment that declined Mr Dunstan’s application to seek judgment by formal proof (the July judgment).1 Mr Dunstan served his statement of claim by courier post. I concluded service by courier post was not good service and recorded documents may only be served by post where the party to be served has agreed to accept service by post or post has been a specified means of service by that party’s solicitor.

[2]    The July judgment was based on my finding the defendants filed their statement of defence prior to Mr Dunstan making his formal proof application. I set out why I held there had been an error by the Court in date stamping the statement of defence 26 April 2024 when, in my view, the overwhelming force of evidence showed that the defence was received by the Court on 24 April 2024.

[3]    Mr Dunstan applied for leave to appeal the July judgment. The defendants advised they would abide the outcome of that application but Mr Dunstan was directed to file submissions in support of his application, which he did in a timely manner. Unfortunately, due to an error in the Registry, those submissions were not referred to me until very recently and I apologise to Mr Dunstan for the resulting delay.

[4]    While the July judgment was based on the above finding as to when the defence was filed Mr Dunstan in his application for leave to appeal, also addresses whether service by post was good service. Mr Dunstan refers to r 6.12(1) of the High Court Rules 2016 (the Rules) which provides that a document may be served on a company in accordance with s 387 of the Companies Act 1993 (the Act).

[5]    Section 387 of the Act permits service by delivery to a person named as        a director, delivery to an employee at the head office of the principal place of business, leaving the document at the company’s registered office, or in accordance with directions as to service given by the Court in agreement with the company.

[6]    The implication in Mr Dunstan’s submissions is that delivery under s 387 of the Act includes delivery by courier post.

1      Dunstan v Genesis Energy Ltd [2024] NZHC 2051.

[7]    However, s 388(1)(b) of the Act means that Mr Dunstan’s submission cannot be correct. Section 388 deals with service of documents other than in a legal proceeding. Section 388(1) provides that documents other than legal proceedings may be served on a company “by posting to the company’s registered office or address for service or delivery it to a box at a document exchange which the company is using at that time”.

[8]    The Act therefore provides service by post is only permitted for documents that are not legal proceedings. The documents Mr Dunstan wished to serve were legal proceedings.

[9]    There is no arguable issue in respect of this point that warrants leave for appeal being granted.

The date of filing of the defence

[10]   I do not repeat the evidence in the July judgment as to the date of the defence. The Registrar has confirmed that the correct date of the filing of the statement of defence was 24 April 2024.

[11]   Mr Dunstan refers to the terms of use for the “File and Pay” system used by the defendant. Included in those terms which parties using “File and Pay” are required to agree to, is the following:

Filings submitted through File and Pay will not be deemed accepted until registry staff have processed and accepted them. If your filing is not accepted, you will be contacted by registry staff in the first instance. In the event that you withdraw an accepted filing, you will be refunded the filing fee paid (if any).

[12]   Mr Dunstan notes that in my July judgment I referred to 26 April 2024 as the date the statement of defence was processed.

[13]   While I can understand Mr Dunstan’s point, I am satisfied that r 5.1B of the Rules governs the situation. That rule is titled “When documents filed”. That rule provides:

(1)Subject to subclause (2) and despite any other provision of these rules or any other enactment or regulation to the contrary, a document—

…

(c)filed by sending it to an electronic address in accordance with rule 5.1A(2)(c)—

(i)is filed when it is received by the relevant electronic communications or information management, retrieval, or storage system, provided the document is received by that system during registry hours; or

(ῑ)at 9 am on the first day on which the relevant registry of the court is open after the document is received by the relevant electronic communications or information management, retrieval, or storage system.

(my emphasis)

[14]Subclause (2) deals with the payment of fees, which is not relevant here.

[15]   The reality is the Rules prevail. They are statutory regulations. The point identified by Mr Dunstan will require an amendment to the “File and Pay” terms as the rule determines when a document is filed, not the terms of “File and Pay”.

[16]   I also note that Mr Dunstan’s memorandum was treated as an application for his proceeding to advance by formal proof is date stamped 26 April 2024 — the same date as the statement of defence is dated. Documents received by the Court are processed in the order in which they are received.

[17]   As the defence was emailed to the Court on 24 April 2024, it would have been “processed” on the morning of 26 April 2024, that is, before Mr Dunstan’s formal proof application.

[18]   Accordingly, even if Mr Dunstan is right and the terms of the “File and Pay” process mean that the defence was not deemed to be filed until 26 April 2024, it is treated as having been processed before Mr Dunstan’s application which was therefore received by the Court after the statement of defence.

[19]   However, that does mean that there is an arguable point in respect of the time of filing.

[20]   The rules in respect of service are quite clear and are not matters that need to be addressed by the Court of Appeal. The statutory context of ss 387 and 388 of the Act are again clear — that service by post is not permitted for a legal proceeding.

[21]   Having concluded that Mr Dunstan’s proposed appeal does not raise reasonably arguable points, his application for leave to appeal is declined.

[22]As the defendants have taken no steps, there is no order as to costs.

Associate Judge Lester

Solicitors:
Russell McVeagh, Auckland

Copy to:
Mr A Dunstan – self-represented Applicant