Exportrade Corp v Irie Blue NZ Ltd

Case [2013] NZCA 675


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

  1. 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].

  2. 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…

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AGLC
Exportrade Corp v Irie Blue NZ Ltd [2013] NZCA 675
Case
[2013] NZCA 675
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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