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Exportrade Corp v Irie Blue NZ Ltd

Exportrade Corp v Irie Blue NZ Ltd

Case [2013] NZCA 675 19 December 2013

Jurisdiction

Forum Non Conveniens

Substituted Service

Service out of New Zealand

Appeal

Limitation Periods

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA784/2012
[2013] NZCA 675

BETWEEN	EXPORTRADE CORPORATION Appellant
AND	IRIE BLUE NEW ZEALAND LIMITED First Respondent
AND	EDITH SHELLEY ROZANNE GRIBBLE AKA ROZANNE GRIBBLE Second Respondent
AND	SCOTT GEOFFREY GRIBBLE AKA SCOTT GRIBBLE Third Respondent

Hearing:	14 November 2013
Court:	Ellen France, White and Heath JJ
Counsel:	G J Thwaite for Appellant H Fulton for Respondent
Judgment:	19 December 2013 at 2.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed.
BOrder that the High Court has jurisdiction over the third respondent in respect of the appellant’s proceeding in New Zealand.
CThe first and third respondents are to pay costs to the appellant for a standard appeal on a band A basis together with usual disbursements.
DAny costs orders following the High Court judgment [2012] NZHC 2870 are set aside. Costs are to be reconsidered in that Court in light of this judgment.
____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Table of Contents

Para No
Introduction [1]
Substituted service on Mr Gribble [5]

High Court decision  [6]
Substituted service  [7]
Service out of New Zealand  [9]
Can the Court order substituted service on a defendant not
present in New Zealand when the proceeding was commenced?   [13]

Jurisdiction in respect of Mr Gribble [21]
The appropriate forum [33]

Barbados the appropriate forum? [44]
Special circumstances why trial in New Zealand? [53]

Result [58]
Postscript [62]

Introduction

The appellant, Exportrade Corp (Exportrade), a company incorporated in Florida, appeals against the decision of Toogood J in the High Court at Auckland granting a stay of its proceeding against the respondents on the grounds that Toogood J erred in deciding that:[1]
(a)a protest by the respondents to the jurisdiction of the New Zealand High Court with regard to four of Exportrade’s five pleaded causes of action remained on foot;
(b)the failure of Exportrade to obtain leave to serve the second cause of action (breach of contract) on the second respondent, Mrs Gribble, overseas was fatal to that cause of action against her;
(c)the High Court had no jurisdiction to order substituted service of the proceeding on the third respondent, Mr Gribble (and accordingly the Court had no jurisdiction over him in respect of Exportrade’s claims); and
(d)the Supreme Court of Barbados rather than the High Court in New Zealand was the appropriate forum for the trial of the proceeding.
[1]Exportrade Corp v Irie Blue New Zealand Ltd [2012] NZHC 2870 at [58], [69], [76] and [77]–[78] [High Court decision].
The issues were determined by Toogood J in the context of a 2008 proceeding in New Zealand by Exportrade claiming US$288,718.50, interest and costs based originally on three causes of action, but subsequently in an amended statement of claim on five, namely: enforcement of a Florida judgment (against all respondents); breach of contract (against all respondents); acknowledgment of debt (against Mr Gribble alone); negligence for breach of the Barbados Companies Act (against Mr and Mrs Gribble); and breach of statutory duty under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Exportrade Corp v Irie Blue NZ Ltd

Details

AGLC: Exportrade Corp v Irie Blue NZ Ltd [2013] NZCA 675
Case: [2013] NZCA 675
Decision Date: 19 December 2013 at 2.00 pm

CaseChat Overview and Summary

Exportrade Corp, a Florida-incorporated company, appealed against the High Court's decision to grant a stay of proceedings against the respondents: Irie Blue New Zealand Ltd, Edith Shelley Roanne Gribble, and Scott Geoffrey Gribble. The appellant's proceeding sought to enforce a Florida judgment, and claimed breach of contract, acknowledgment of debt, and negligence for breach of the Barbados Companies Act against the respondents. The principal issues for determination by the Court were the validity of the substituted service order on Mr Gribble and the appropriateness of New Zealand as the forum for the trial. The Court found that the substituted service order was valid, and that New Zealand was the appropriate forum for the trial. The appeal was allowed, and the High Court was found to have jurisdiction over the third respondent. The first and third respondents were ordered to pay costs to the appellant. The costs ordered following the High Court judgment were set aside and were to be reconsidered in light of this judgment.

Orders