Exportrade Corporation of 1355 W. Palmetto Park Road 269 v Irie Blue New Zealand Limited HC Auckland CIV 2008-404-7130

[2010] NZHC 1502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-007130

BETWEEN  EXPORTRADE CORPORATION, OF

1355 W. PALMETTO PARK ROAD #269, BOCA RATON, FL 33486, USA, A CORPORATION UNDER AMERICAN LAW

Plaintiff

ANDIRIE BLUE NEW ZEALAND LIMITED First Defendant

ANDEDITH SHELLY ROZANNE GRIBBLE AKA ROZANNE GRIBBLE

Second Defendant

ANDSCOTT GEOFFREY GRIBBLE AKA SCOTT GRIBBLE

Third Defendant

Hearing:         19 April 2010

Appearances: G J Thwaite for the Plaintiff

H Fulton for the Defendants

Judgment:      28 April 2010

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

29.04.10 at 11:00am, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel

G J Thwaite, Solicitor, Auckland – [email protected]

H Fulton, Barrister, Auckland – [email protected]

EXPORTRADE CORPORATION, OF 1355 W. PALMETTO PARK ROAD #269, BOCA RATON, FL 33486, USA, A CORPORATION UNDER AMERICAN LAW V IRIE BLUE NEW ZEALAND LIMITED AND ORS HC AK CIV 2008-404-007130  28 April 2010

[1]      On 30 August 2007 the plaintiff (Exportrade) obtained a judgment from the

Florida, USA, Circuit Court dated 30 August 2007 (the Florida Judgment).

[2]      That judgment provides the foundation for the first cause of action in this proceeding.  Exportrade pleads that the Florida judgment is enforceable in the High Court of  New  Zealand.    Therefore  Exportrade  seeks  judgment  for  the sum  of US$288,718.50 plus interest.

[3]      By its first statement of claim filed in this Court on 30 September 2008

Exportrade pleads that each of the defendants was liable to pay to it the amount of the Florida judgment under the law of the State of Florida, USA.

[4]      Exportrade’s case can be summarised as one by which it pleads:

a)        An entitlement to the fruits of the Florida judgment; or

b)        Regardless of the Florida judgment it is entitled to judgment in the

New Zealand Courts upon its claim.

[5]      For present purposes i.e. the application to set aside the protests it is the first option that this Court is presently concerned with.

Florida judgment

[6]      It is set out in full below:

EXOPORTRADE CORP.,                   IN THE CIRCUIT COURT OF THE Plaintiff,      11th JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

vs  GENERAL JURISDICTION DIV.

COLOURTONE SCREEN PRINTERS   CASE NO.: 07-10675 CA 22

LTD., a/k/a ROSCO TEES, IRIE BLUE, LTD.,

CAFÉ BLUE, LTD., SUMMAGRAPHIX, LTD., AMG, LTD., IRIE BLUE N.Z. LTD.,

ROZANNE GRIBBLE, and SCOTT

GRIBBLE,

Defendants.

FINAL DEFAULT JUDGMENT AGAINST DEFENDANTS

THIS CAUSE came before this Court for hearing on August 7, 2007, upon Plaintiff’s Motion for Default and Default Judgment Against Defendants COLOURTONE SCREEN PRINTERS LTD., a/k/a ROSCO TEES, IRIE BLUE, LTD., CAFÉ BLUE, LTD., SUMMAGRAPHIX, LTD., AMG, LTD., IRIE BLUE N.Z. LTD., ROZANNE GRIBBLE, and SCOTT GRIBBLE, and the Court having heard and considered argument of counsel, having determined that the Defendants had been properly and duly noticed of same, and being otherwise duly advised in the premises, it is hereby.

ORDERED AND ADJUDGED that final judgment is hereby entered in favour of Plaintiff, EXPORTRADE, CORP., a Florida corporation, and against Defendants COLOURTONE SCREEN PRINTERS, LTD., a/k/a ROSCO TEES, IRIE BLUE, LTD., CAFÉ BLUE, LTD., SUMMAGRAPHIX, LTD., AMG, LTD., IRIE BLUE N.Z. LTD., ROZANNE GRIBBLE, and SCOTT GRIBBLE, jointly and severally, each Defendant having an address of 11 Wildcy Estate, St. Michael, Barbados, in the principal sum of $160,105.25, plus interest at the agreed upon rate of 8% (0.0002192 per diem) on the then sums due and owing for a total interest of

$128,613.25, for a total sum of $288,718.50, plus statutory interest at the current rate of 11% (0.0003014 per diem) thereon from the date of this Final Judgment for which sums let execution issue.

DONE and ORDERED in Miami-Dade County, Florida 30 day of August,

2007.

[7]      Clearly it is a default judgment.  It provides, as well, for judgment against:

COLOURTONE SCREEN PRINTERS, LTD., a/k/a IRIE BLUE N.Z. LTD., ROZANNE GRIBBLE, and SCOTT GRIBBLE.

Service of the New Zealand Proceedings

[8]      Exportrade has filed an affidavit evidencing service of the New Zealand proceedings upon Mrs Gribble on 27 March 2009, in Barbados.

[9]      Service upon Mr Gribble was affected after an application for substituted service  had  been  filed.    That  application  is  supported  by  an  affidavit  of  Mr Firestone, Exportrade’s company president.   Mr Firestone deposes he has known Mr Gribble for many years.  He says Mr Gribble is a New Zealander.  He referred to previous litigation wherein Mr Gribble was served in Barbados and the fact that following that Mr Gribble engaged the legal firm who now instructs Mr Fulton.  Mr Firestone also deposes that Mr Gribble has been involved in other New Zealand based companies including IRIE BLUE NEW ZEALAND LIMITED and STEPPERS LIMITED.  Mr Firestone referred to the fact that NZ Companies Office documents describe Mr Gribble as having residence at 24 Blomfield Spa, Takapuna as indeed they do for Mrs Gribble.  He refers also to a land title search describing the defendants’ solicitor Mr Bell-Booth together with two members of ‘the Gribble Family’ as owning half of the property at 24 Blomfield Spa, Takapuna along with a June Gribble – apparently Mr Gribble’s mother.

[10]     Acting on that information, upon Exportrade’s without notice application for substituted service this Court made orders for service upon Mr Gribble to be affected through his lawyer’s office and by ordinary mail addressed to 24 Blomfield Spa, Takapuna.

[11]     On 9 October Exportrade filed an affidavit of service of the proceedings being served upon Mr Gribble at the 24 Blomfield Spa, Takapuna address.

[12]     On 16 October 2009 an affidavit of service was filed in respect of service upon the first defendant.  On the same date another affidavit of service was filed evidencing service of these proceedings at the offices of Bell-Booth Sherry, solicitors, Takapuna.

Protest to jurisdiction

[13]     On 30 October the defendants filed a notice of appearance under protest.  It noted, inter alia:

1.The Florida Court did not have jurisdiction to give judgment because the defendants:

(a)      Were not resident or present in the United States or in the State of Florida at the time the foreign proceedings instituted.

(b)      Did  not  submit  to  the  jurisdiction  of  the  Foreign

Court.

(c)      Were not served with the Foreign Court process. (d)   Did not appear in the proceeding.

2.The first defendant has no knowledge of Exportrade’s claim, in respect of which:

(a)     It did  not contract  for  fabrics  and  garment manufacturing  supplies  with  Exportrade  or  receive any such.

(b)      Did not enter into any contract with Exportrade. (c)     Has not made payments to Exportrade.

(d)Is  not  a  judgement  debtor  in  the  default  judgment referred to.

(e)      Does not have the Barbados address given for it in the

Florida proceedings.

(f)      Was not served with documents demanding payment. (g)       Was not served with the foreign process.

(h)Does not operate and has not operated or conducted business in Barbados or Florida.

(i)Is not alleged in the proceeding to have conducted the alleged foreign trade.

3.Mrs Gribble is resident overseas and not a proper party to this proceeding.

4.Mr Gribble was not resident in New Zealand when this proceeding commenced and is not a proper party to the proceeding and the order for substitution should be set aside.

[14]     By its application to set aside the defendants protests Exportrade asserted:

1.        In respect to the first defendant that:

(a)     It   is   a   New   Zealand   incorporated   company   and therefore subject to the jurisdiction of the High Court.

(b)     It is domiciled or ordinarily resident in New Zealand. (c)          Judgment was validly obtained against it in Florida. (d)  Exportrade has a valid claim against it.

2.In respect to the second defendant (Mrs Gribble): (a)   She is outside the time for filing a protest.

(b)She  is  estopped  from  denying  she  is  domiciled  or ordinarily resident in New Zealand.

(c)     Exportrade has an arguable case that she is domiciled or ordinarily resident in New Zealand.

(d)The  Court  should  assume  jurisdiction  to  rule in  this case.

3.        In respect to the third defendant (Mr Gribble):

(a)    He was served in New Zealand, pursuant to an order of this Court, and may not file a protest.

(b)He is estopped from denying that he is domiciled or ordinarily resident in New Zealand.

(c)    There is a good arguable case that he is domiciled or ordinarily resident in New Zealand, or otherwise is subject to the jurisdiction of the High Court in terms of r 6.27.

(d)The Court should assume jurisdiction by reason of the matter set out in r 6.28(5) because the claim has a real and substantial connection with New Zealand; there is a serious  issue  to  be  tried  on  the  merits;  and,  New Zealand is the appropriate forum for that trial.

(e)    Had Exportrade applied for leave under r 6.28 it would have been granted and it is in the interests of justice that the failure to apply for leave should be excused.

[15]     By their response the defendants assert:

1.This proceeding is for  the enforcement of a judgment of a Foreign Court which did not have jurisdiction in respect of the defendants; that such jurisdiction it purported to exercise is not recognised or enforceable in New Zealand.

2.The defendants were not served or adequately served with the process of the Foreign Court.

3.The first defendant did not contract at all with Exportrade.  It says no liability exists and there is no basis for a claim against it.

4.There is no authority for the service upon a person out of New Zealand of proceedings relating to the enforcement of a foreign judgment.   In any event leave was not obtained to serve Mrs Gribble who resides out of New Zealand.  The leave obtained by substituted service upon Mrs Gribble in New Zealand was in the circumstances inappropriate and improper.

5.That Mr Gribble was out of New Zealand at the time service was  affected  upon  him  and  in  the  circumstances  it  was improper and inappropriate to obtain leave to affect service upon him as if he was in New Zealand.

[16]     In support of their position two affidavits have been filed on behalf of the defendants.    One  was  from  the  third  defendant  and  the  other  from  Mr Roger Gribble, the first defendant’s manager.   Mr Roger Gribble deposes that the first defendant has had no dealings or transactions with Exportrade and has not assumed any liability to Exportrade for itself or for any other person.   He notes the first defendant is not named as a judgment debtor in the Florida judgment.  He adds that the first defendant has no address of business in Florida or in Barbados and does not have the address given for it in Barbados.

[17]     By his affidavit Mr Gribble (the third defendant) deposes he was not aware of any default judgment (from Florida) against him or the other defendants until served with Exportrade’s first proceeding in New Zealand commenced in 2007.

[18]     Mr Gribble denies ever being domiciled or resident in the United States of America.  He asserts the Florida Court had no jurisdiction over him.  He did not receive notice of any application for default judgment against him.  He states that Exportrade’s Florida attorney appears to have mailed the Florida Court documents to a Barbados address for he and the other defendants, which was not their address.

He rejects any claim that the various corporate entities identified in the Florida judgment were his “alter ego”.  Their claim to the contrary has no meaning at all to him.

[19]     When the present proceeding was commenced he was not in New Zealand and he does not have a residence at 24 Blomfield Spa, Takapuna.

[20]     Mr Gribble says Mrs Gribble is his former wife and that she has not been resident in New Zealand for some 20 years.   He says her circumstances are the same as his so far as the Florida proceedings are concerned.

The plaintiff’s application

[21]     It is that its application to set aside the protests of the three defendants concerns solely an issue of jurisdiction, involving an action arising from the supply of  clothing from  Florida,  USA  to  Barbados.    Exportrade  relies  on  the  Florida judgment, which names all three defendants, concerning a contract or other liability under  the  law  of  Florida,  and  a  guarantee  or  acknowledgment  of debt  by Mr Gribble.

[22]     Exportrade’s position in this application is concerned solely with setting aside the defendants’ protests; that if these are set aside then the defendants will require time to prepare a defence to the summary judgment application.

[23]     The approach on behalf of Exportrade focuses upon the circumstances in which a party served can file a protest and what considerations are relevant in that exercise.  The underlying principle is that of restraint concerning a foreign citizen who resides overseas.  According to Sims Court Practice, HCR 5.49.3, the Court’s jurisdiction may be challenged in only two circumstances of which in this case only the first applies namely that where a defendant served overseas contends that the case is outside the ambit of Rule 6.27 and 6.28.

[24]     In general terms Rule 6.27 provides for service upon a party out of New

Zealand without leave in cases where the cause of action arose in New Zealand or

concerns land or property in New Zealand or concerns persons domiciled or ordinarily resident in New Zealand.

[25]     Rule 6.28 provides that in any proceeding where service is not allowed by Rule 6.27 service outside of New Zealand may only be permitted with the leave of the Court.  Accordingly an application for leave needs be made.  Such must indicate facts and matters showing the desirability of the Court assuming jurisdiction.

[26]     In this case Exportrade has, as I have earlier noted, filed affidavits of service of the proceeding upon each of the defendants.

[27]     In summary, Exportrade whilst prepared to advance arguments regarding the merits of its claims, has for present purposes confined itself to those matters the rules permit to be considered upon a setting aside of protest application.  It says the defendants do not wish to examine the merits of Exportrade’s claim which is the subject  of  the  Florida  judgment.     Rather  they  would  wish  to  pre-empt  the difficulties that would cause them, by asserting the Florida judgment is a nullity because the New Zealand first defendant is different from that described in the Florida judgment.   That is why deponents for the defendants have asserted with confidence that the first defendant did not do business in Barbados or Florida nor contracted with Exportrade.

Opposition to application

[28]     The defendants' position is that this Court does not have jurisdiction to enter a judgment based on the Florida judgment because that judgment was invalid and cannot be enforced in New Zealand.   It is common ground the case is about the enforceability of a foreign judgment.  The defendants assert the foreign judgment will not be recognised in New Zealand as it lacked jurisdiction according to New Zealand rules of conflict of laws.   In brief, the New  Zealand Courts  have no jurisdiction based on the Florida judgment because:

a)        The defendants were not resident in, nor submitted to the Florida jurisdiction.

b)The Florida process was contrary to substantial/natural justice by failing to personally serve the defendants with its process.

[29]     Therefore the defendants assert the Florida judgment was a nullity.  As such it is properly the subject matter of a protest because if the Florida judgment is invalid then this Court cannot exercise jurisdiction to enforce it.

[30]     In any event the defendants say that proper service of the within proceeding upon them has not been affected.   The intitulment of this proceeding identifies through the name of the first defendant, a corporation not by that name identified in the Florida judgment.  Service upon the second defendant was made in Barbados although leave of this Court had not beforehand been obtained.  Service upon the third defendant was pursuant to an order for substituted service which provided for service of documents upon his solicitors and by delivery, as well by ordinarily mail to a Takapuna address.   In fact, it is asserted Exportrade had no good reason to believe the third defendant was at that time resident in New Zealand.

The defendants’ case

[31]     The application to set the protests aside will succeed unless the plaintiff can persuade the Court that an arguable case for the claim that the Florida judgment is enforceable in New Zealand.

[32]     The defendants assert the Florida judgment is a nullity because it assumes jurisdiction over foreign nationals in a foreign country.   That was the approach Judge Doogue took in the 2007 proceeding that preceded this one.   In that proceeding Exportrade filed a discontinuance.   In dealing with an issue of costs Judge Doogue noted that Mr Thwaite wanted to persuade him to go into the merits of the case.  Mr Thwaite submitted there was a possible conflict in evidence given for the plaintiff and that for the defendants on the question of where the defendants resided.  Judge Doogue had heard part of the case and expressed the view that it showed that even if Mr Thwaite was right about points of conflict of evidence, Exportrade was nevertheless inevitably going to fail.  Judge Doogue expressed the

view [1]  that the Florida Court did not, on the tests that are applied in the common law jurisdictions have jurisdiction to enter a judgment on an in personam cause of action.  The Learned Judge said the New Zealand Court could not recognise such a judgment as being one to which it should give effect even if the Court had the necessary jurisdiction over the defendants to enter a judgment against them.  The plaintiff was therefore never going to succeed anyway, he said.

[1] CIV 2007-404-7020, 6 November 2008, paragraph 3

[33]     I have not been referred to any parts of that file or the evidence given in it.  I have  no  particular  knowledge  of  the  circumstances  to  which  Judge  Doogue referred.   I assume he was expressing concerns over claims against defendants whose actions could not sufficiently be linked to a Florida based claim.

[34]     Mr Fulton, relying upon the decision of the Court of Appeal [2] submitted that for the Florida Court to exercise jurisdiction the defendants, and each of them, must be present in that foreign country at the time the proceedings were instituted.  Yet, Mr Fulton submitted, the plaintiff does not  plead that connection.   Instead all defendants in the Florida proceedings were served by documents forwarded by mail to a singular address in Barbados – an address which Mr Gribble deposed was not used by any of the defendants as a place of business.

[2] Von Wyl v Engeler [1988], 3 NZLR 416

[35]     Also whilst other conditions may have enabled the Florida Court to exercise jurisdiction, these too were nonexistent or have not been addressed.   Those will include the filing of a counterclaim in a foreign court, submission to jurisdiction or agreement to jurisdiction of that court.  Instead this court only has evidence of the defendants’ claim not to be resident or to have a place of business in Florida. Indeed Exportrade’s statement of claim has them all living in New Zealand – the very  antitheist  of  any  allegation  or  connection  that  the  Florida  Court  had jurisdiction over them.  The defendants say the best that it gets from Exportrade’s viewpoint is the affidavit of its Mr Firestone in which he deposes he “verifies” statement of claim and the summary judgment application.   But, as Mr Fulton submits, that provides no basis for him to verify the plaintiffs various allegations including paragraph 31 of the statement of claim by which it is asserted the Florida

Court had personal jurisdiction over each of the defendants pursuant to the law of the State of Florida.  There is, the defendants submit, simply no evidence in support of that contention.  Nor, is Mr Firestone suitably qualified to verify that claim.

[36]     Mr  Fulton  submits  that  the  plaintiff  has  not  alleged  or  attempted  to demonstrate that the first defendant had a place of business in or carried on business in Florida (or Barbados for that matter).  Therefore it is unnecessary to consider the nature and agree of “business presence” whereby a company is amenable to foreign jurisdiction in Florida.  In that event it is up to the plaintiff seeking to enforce the Florida judgment to establish that the non-residents accepted that jurisdiction to determine the proceeding.

[37]     Neither is there evidence that the second and third defendants were resident in or submitted to the Florida jurisdiction.  They were purportedly served by mail in Barbados.  Both claimed not to have received the papers.

[38]     Mr Fulton submits that service by mail or indeed other means will not satisfy the standard under New Zealand (common law) Conflict of Laws complying with natural or substantial justice where there is an international component.  The New Zealand standard, submits Mr Fulton, is personal service subject to authorised exceptions by order for alternatives that the Court is satisfied are likely to bring notice to a defendant.   A foreign judgment will not be recognised or enforced in New  Zealand if the proceedings in which it  was  given were contrary to New Zealand’s  conceptions  of  natural  justice,  as  for  example  where  the  defendant receives insufficient notice of the proceedings to be able to defend them, or was

denied a fair opportunity to present a defence [3]. Therefore the rules of foreign

courts must coincide with New Zealand’s procedural rules.

[3] Adams v Cape Industries Plc [1990] CH 433 at 563 and 564

[39]     Mr Fulton submits that by the circumstances in which the Florida Court was prepared to accept notice of the Florida proceedings having been brought to the attention of the three defendants was akin to endorsing a rule permitting service anytime, anywhere by mail.   This is not he says a practice acceptable in New Zealand.

Comment upon defendants’ position

[40]     If that description of matters is correct then the submission might be correct. On the one hand it assumes too much - that the Florida Court had insufficient reason to suspect notice of the proceeding would come to the attention of the defendants.  On the other hand it ignores facts which might have been brought to the attention of the Florida Court and, upon the affidavit evidence available to this Court, could properly have been inferred to do just that.   I will make further reference to this later.

[41]     I now wish to consider the protests of the second and third defendants. They were formerly married.  It is claimed the marriage has long since ended.  It is not in dispute that this notwithstanding, a commercial relationship of sorts has subsisted.  Clearly that is evident from the formal company documents that have been produced even to the end of the 2009 financial year.

[42]     The second defendant has not filed an affidavit.  It is claimed for her that she is an overseas resident.  Leave for service upon her overseas was not sought. As earlier noted service of these proceedings was affected upon her in Barbados. She was served at Rosco Tees, Wildey Industrial Park in the Parish of St Michael in Barbados.  Incidentally these address details are to be compared, I consider closely, with the address referred to in the Florida judgment, being the same address at which it was said all defendants in the Florida case (including one named Rosco Tees)  was  said  to  have  been  served  namely at  11  Wildey Estate,  St Michael, Barbados.

[43]     The case on behalf of Mrs Gribble is not so much that she was not served but that she should not, without leave, have been served at all.   It is further contended that because of delay she was prevented from filing a protest as to jurisdiction within time.   Indeed it is claimed service was invalid because it post dated the summary judgment hearing date allocated.

[44]     On her behalf it is claimed that because she was resident overseas for, it is said, 20 years and was not, it is said, in New Zealand when the action commenced.

For her it is stated that despite Companies Office records suggesting the contrary, she was not resident in New Zealand.

[45]     Mr  Fulton  submits  that  the  jurisdiction  of  a  Court  to  preside  over  a defendant’s situation must exist at that time where a defendant is resident/located. There is sufficient evidence, Mr Fulton submits, to prove Mrs Gribble was resident overseas.  Therefore she was not subject to New Zealand jurisdiction and the fact she may be an owner of property in New Zealand (comprising shareholdings in New Zealand companies), it is not sufficient to found jurisdiction.

[46]     The primary issue about service of the proceedings on the second defendant concerns the fact that leave of the Court was not beforehand sought.  Because she was not a New Zealand resident and because the substance of the proceedings involves no “real issue” for determination in the New Zealand Courts, Mrs Gribble is not necessarily a proper party to any proceedings against the first defendant.  It is claimed there is no evidence involving the need at all for her to be a party.  There is not, as Rule 6.27(h) requires, a real issue between the first defendant and Mrs Gribble that ought to be tried.  Mr Fulton submits that had leave been sought under Rule 6.28 it would have been based on affidavit evidence to demonstrate a real and substantial connection with New Zealand, a serious issue to be tried on the merits, and that New Zealand is the appropriate forum.  But, the Court has not received the benefit of Exportrade’s proof of these matters, notwithstanding it has identified the issue and alleges that leave would have been granted.

[47]     The submission on behalf of Mrs Gribble was that she was not served with the summary judgment application until 27 March 2009 and that date was after the summary judgment hearing was listed for call on 13 March 2009.  Therefore there was no ability for her to respond to the documents served.  Although Exportrade, by counsel’s memorandum dated 10 March had already asked for an adjournment of the summary judgment, service occurred some 17 days later.  Mr Fulton submits service was accordingly invalid: it has no purpose or affect.  Further, there was no requirement notified in the summary judgment documents from Mrs Gribble to file any document within 50 days, as was provided in the notice of proceeding accompanying the statement of claim.

[48]     Submissions on behalf of Mrs Gribble alleging lack of notice are, I consider, based on certain assumptions, not borne out by an analysis of the process surrounding Court - made extensions of the list dates for first call of the summary judgment application.

[49]     Objections concerning service upon Mr Gribble relate to his having only ever being served in this proceeding by substituted service pursuant to an order made on 24 September 2009 providing for service on the defendants’ solicitors, and sent by mail to 24 Blomfield Spa, Takapuna.

[50]     Mr Fulton submits that when this proceeding was commenced and when the application for substituted service was made, the evidence overwhelmingly showed Mr Gribble was not in New Zealand.  This, he says, is evidenced by the fact that service  was  attempted  upon  Mr  Gribble  in  Barbados  in  March  2009;  that  in February 2009 Exportrade learned from two sources that Mr Gribble was overseas. Also, in September 2009 it learnt Mr Gribble could not be found in New Zealand and also then that he did not live at 24 Blomfield Spa.

[51]     Exportrade was wrong, Mr Fulton submits, to refer to Companies Office records to get Mr Gribble’s “legal residence”.  Because Mr Gribble was overseas at the time (at least as much is asserted on his behalf) leave should have been sought for substituted service upon him out of New Zealand.   Instead an application for substituted  service  was  made  to  be  effected  in  New  Zealand.     Although Exportrade’s substituted service application was granted, it had not been drawn to the Judge’s attention that Mr Gribble was overseas and (so it is claimed) could only be served with leave granted.

[52]     Mr Fulton submits that the proceeding “served” by substituted service was a New Zealand proceeding for service within this jurisdiction.   In such cases the defendant being “served” must be proved to be within the jurisdiction.  Because it was not, service was therefore invalid.

[53]     That position assumes, I consider, too much reliance upon evidence about why Mr Gribble ought to have been assumed to have been overseas and therefore

for service upon him to have been processed accordingly.   In my assessment Mr Gribble’s evidence, and also that of Mr Robert Gribble, needs closer scrutiny, as much for what it did not say as for what it did.  It is in that context also that I wish to examine the evidence in support of the following submission on behalf of the first defendant:

The first defendant, if it is the company intended to be held liable under the Florida  judgment,  had  a  publicly  notified  address  for  service  in  New Zealand by reason of the Companies Office documents.  It had no address in Barbados where it was purportedly served by mail (affidavit R J Gribble, paras 4 and 5).  If Barbados is an address for a company named IRIE Blue Limited or IRIE Blue NZ Limited at Wildey Estate, Barbados, then it is not the first defendant as cited in this case.  The plaintiff does not attempt to identify the first defendant with the corporate bodies mentioned in the Florida judgment.”

(Mr Fulton’s written submissions at paragraph 12)

Considerations

[54]     The case for the first defendant is that it is not the corporate entity referred to in the Florida judgment.  The first defendant’s name is Irie Blue New Zealand Limited.   The Florida judgment refers to the corporate entity of Irie Blue N.Z. Limited.  In infer that there is no New Zealand corporate entity registered under the name Irie Blue N.Z. Limited.  I consider the first defendant’s claim that it had no contractual relationship with Exportrade is misconceived.  As Mr Thwaite noted the first defendant’s company records abound with references to the company as Irie Blue N.Z. Limited and Irie Blue NZ Limited as is evidenced by forms signed by Mr Gribble and filed in the Companies Office.  The clear evidence is that the correct legal description of the first defendant is that which is contained in the intituling of this proceeding.

[55]     If the first defendant has evidence that it is not the company in the Florida judgment then it has the right to file a summary judgment but that would invite the Court to decide the matter on its merits.   Presently the Court does not have that evidence from the first defendant.   In any event I believe this hearing of protest issues is not concerned with claims about the merits of a case against the first defendant.

[56]     Nor do I accept the submission that the company records may not be relied upon to provide evidence of the addresses of Mr and Mrs Gribble.   A company search of the first defendant indicates they are the shareholders in the company and their address is given as 24 Blomfield Spa, Takapuna, Auckland 9.  Those records indicate Mrs Gribble resigned as a director on 15 January 2008.  Her resignation is not noted by reference to any other address than 24 Blomfield Spa, Takapuna, Auckland 9.   The same address is given for the other companies with which the Gribbles are connected.   The annual returns filed on behalf of those companies identified that Mr and Mrs Gribble were 50 per cent shareholders of them.   The annual return required a response to the question ‘Are 25% or more a voting share is held by a person/body corporate ordinarily resident outside New Zealand?’  On each annual return the answer was “No”.

[57]     These returns are not a documents produced by a firm of accountants.  They are  documents  required  by  s  214  of  the  Companies  Act  which  requires  an obligation by the directors to list their address.

[58]     The  evidence  is  clear  that  at  the  time  this  proceeding  was  served  Mrs Gribble resided in Barbados.  There was a good arguable case that Mr Gribble did not.  He argues that he was not resident in New Zealand but does not say where he was.   That he may at that point in time when the proceedings were served have been overseas does not invalidate service upon him as if he was not overseas.  It is to be reasonably assumed that prompt notice of the proceeding was brought to his attention – that being the primary objective of the service rules.

[59]     In summary I accept there is a good arguable case that service upon each of the three defendants has been properly affected.   The residual issue concerns whether at this time of hearing the protests to jurisdiction the Court should, as Judge Doogue did, assume that the Florida judgment was invalid.

[60]     It is apparent from the way in which the protest arguments were put to me on behalf of the defendants that the Florida Court had no basis for assuming jurisdiction  over  foreign  nationals  in  a  foreign  jurisdiction.    The  defendants’ position is that this Court will not recognise the Florida judgment.  In large part it is

pursued because of the way it is claimed the service was affected upon the defendants.

[61]     I am concerned with a good arguable case principle.  I am constrained by rules relating to lawfulness and adequacy of service.  An enquiry of lawfulness is one I think which is more related to the merits of the case; examining whether in the circumstances described the Florida Court had proper purpose in hearing the case.  I have already ruled that for present considerations sufficient service of this proceeding has been affected.

[62]     If it should in time be adjudged that a Florida Court was wrong to assume jurisdiction because a New Zealand Court would not have done so then that is a matter for examination of the evidence concerning the parties’ contractual relationship and whether in that outcome there was a submission to the jurisdiction of the Florida Courts.  But, that enquiry is for another day even if in the outcome Judge Doogue’s assessment is upheld.  At that time the issue will be whether or not there is a real and substantial connection between the parties’ issues and the Court entrusted to resolve them.

[63]     It is not a question about whether or not a person is physically based in the jurisdiction at the time a claim is brought.  Obviously the plaintiff will argue the relevant connection exists such that the judgment of the Florida Court will be recognised.   The present evidence indicates a significant connection between Mr Gribble and Exportrade, of Mr Gribble’s visits to Florida on business and on vacation, and in relation to his purchasing life insurance there, and in connection with his completing a signed acknowledgment for repayment of Exportrade’s debt. There is evidence also of the Florida manufactured goods being supplied to Mr and Mrs Gribbles’ business entities in Barbados.   Without more and disregarding the first defendant’s case built around a mis-description of the first defendant, there is evidence of a real and substantial connection involving one or more of the defendants.

[64]     Mrs Gribble claims a disadvantage due to the fact that by the time the documents  were served  upon  her  the  first  call  date  of  the  summary judgment

application had passed.  She has not been disadvantaged.  As is normal practise first call dates are adjourned until service of the documents has been affected.   That happened here.  No disadvantage occurred.  Mrs Gribble’s protest with was filed without any issue identified relating to its timing.

[65]     Mrs Gribble asserts she was not resident in New Zealand at relevant times. If that is so the available evidence suggests that nevertheless she might have domiciled in New Zealand.  Regardless, she was served in Barbados.  There is no statement from her that she has abandoned her New Zealand domicile.

[66]     I earlier noted that the underlying principle with the protest claim concerns a foreign citizen who was resident overseas.   I am satisfied there is insufficient evidence that the defendants are foreigners and there is no need in their case to be concerned about underlying principle.

[67]     Protests to jurisdiction usually rely upon forum non conveniens arguments. But, there has been no argument on behalf of the defendants that there is a better forum to deal with this case than New Zealand.  The case for the first defendant, unlike the case for Mr and Mrs Gribble is not based around where it was served.  Its case is solely about whether or not it has properly been identified.   On a protest argument  its  case  should  be  solely  confined  to  whether  or  not  it  was  served overseas.  It was not.  The first defendant does not raise a forum non conveniens argument.   There may be a dispute but whether or not the first defendant was properly sued in Florida but that does not constrain this court upon this matter from deciding whether in the first instance it has jurisdiction to determine the protest.

[68]     Mrs Gribble was served with the plaintiff’s proceeding on 27 March 2009. Pursuant to (then) Rule 225, Mrs Gribble’s defence should have been filed within

50 days i.e. by 18 May 2009.   Her protest was dated 28 October 2009 i.e. five months and ten days late.  It was not therefore pursuant to Rule 5.49(1) filed “... within the time allowed for filing a statement of defence...”.  She did not apply for an extension of time to file the appearance.  She has not filed an affidavit directly. In that context it might be considered the evidence of her former husband Mr Gribble is inadmissible as the issue of residence is ultimately to be decided by the

Court.   Regardless her claim is inconsistent with the repeated assertions made in documents filed with the Companies Office.   Also a protest to jurisdiction is a powerful unilateral proceeding because of its potential to cause delay.   A strict deadline is imposed upon a defendant wishing to file a protest.  If it is out of time a defendant has to apply for time to file an appearance.   In those circumstances it would be arguable that the defendant had taken a step in the proceeding and thereby submitted  to  the  Court’s  jurisdiction.     Therefore,  a  protest  is  a  once  only opportunity.  I prefer the view that Mrs Gribble has submitted to the jurisdiction of the Court in terms of the documents filed in her name and on her behalf with the Companies Office in New Zealand.

[69]     Mr Gribble’s protest is also subject to formal difficulties.   He was not served outside New Zealand, he was served inside New Zealand.  He does not offer a forum non conveniens argument.   He has not applied to set aside the order for substituted service.  He is not deposed that he was not ordinarily resident in New Zealand as presumably he would have.  He simply invites the Court to consider that there was not sufficient proof of his residence in New Zealand at the time of service.  The affidavit of his filed with this Court describes him as being now “of Auckland, Company Director”.   Documents filed by his solicitors provide his address being care of those solicitors.

[70]     Mr  Gribble’s  clear  intention  is  to  make  himself  immune  from  this proceeding.  No doubt in due course a decision regarding the issue of the Florida judgment  will  resolve  issues  of  immunity.    That  is  an  issue  for  subsequent decisions, not upon his protest claims.

Result

[71]     The applications to dismiss the protest are granted. [72]         The plaintiff applies for indemnity costs.  It recites:

(a)     The frivolity of the position taken by the first defendant.

(b)The  inconsistency  of  the  position  taken  by  Mrs  Gribble,  with documents filed over many years with the Companies Office.

(c)   The inconsistency of the position taken by Mr Gribble, with the documents filed over many years with the Companies Office.

(d)The  inconsistency  of  the  position  taken  by  Mr  Gribble,  with documents filed in 2008 with the Companies Office, relating to his location.

[73]     In my judgment this is not a proper case for the award of indemnity costs. Rather  an  award  of  standard  costs  ought  to  apply.    Costs  on  a  2B  basis  are calculated as if there was only one defendant, owing to the similarity of argument affecting them all.

Associate Judge Christiansen