First NZ Properties Limited v Registrar of Companies

[2019] NZHC 3271

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-000066

[2019] NZHC 3271

UNDER

Section 329 of the Companies Act 1993

IN THE MATTER

of an application for an order that Inlandia Limited be restored to the Companies Register

BETWEEN

FIRST NZ PROPERTIES LIMITED

First Applicant

AND

SUPERSTORE PROPERTIES LIMITED

Second Applicant

AND

REGISTRAR OF COMPANIES

First Respondent

AND

NEIL ALLAN BARNES

Second Respondent

Hearing:	Determined on the Papers
Counsel:	C J Lange for First and Second Applicants
Judgment:	12 December 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 December 2019 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Raymond Donnelly & Co (Philippa Currie), Christchurch

FIRST NZ PROPERTIES LTD v SUPERSTORE PROPERTIES LTD [2019] NZHC 3271 [12 December 2019]

[1]    The applicants have filed an originating application for an order that Inlandia Ltd be restored to the Companies Register under s 329 of the Companies Act 1993. They consider they have an undischarged claim against the company and wish to pursue it.

[2]    The Registrar of Companies and Neil Allan Barnes, who was formerly a director of Inlandia, are named respondents. Mr Barnes is residing in Texas, United States of America. I am satisfied that the applicants’ application is one where they are permitted to effect service upon Mr Barnes overseas without leave of the court pursuant to r 6.27 High Court Rules. However, the applicants have been unable to serve Mr Barnes.

[3]    The applicants are now applying for substituted service in reliance upon r 6.8(1) and (2) High Court Rules 2016 which provide:

6.8     Substituted service

(1)If reasonable efforts have been made to serve a document by a method permitted or required under these rules, and either the document has come to the knowledge of the person to be served or it cannot be promptly served, the court may –

(a)      direct –

(i)that instead of service, specified steps be taken that are likely to bring the document to the notice of the person to be served; and

(ii)that the document be treated as served on the happening of a specified event, or on the expiry of a specified time:

(b)      when steps have been taken for the purpose of bringing, or which have a tendency to bring, the document to the notice of the person on whom it is required to be served, direct that the document be treated as served on that person on a specified date:

(c)      subject to any conditions that the court thinks just to impose, dispense with service of a document on a person and give to the party by whom the document is required to be served leave to proceed as if the document had been served.

(2)If a direction is given under subclause (1)(a) in respect of a document, the document must be treated as having been served at the place –

(a)      at which the document is likely to have come to the notice of the person to be served; or

(b)      where that person was or is likely to have been on the happening of the event or the expiry of the time specified under subclause (1)(a)(ii).

[4]    The evidence before me in an affidavit of Paul Mephan, who is a Chief Executive Officer authorised to give evidence on behalf of the applicants, is that he has in recent times been in email contact with Mr Barnes to have him accept service of the proceedings by way of email. Mr Barnes is aware the applicants do not have his residential address. He has already been sent copies of the originating application and supporting documents by email. He has sought legal advice from a Nelson solicitor. He will not accept service by email unless conditions are met which are unacceptable to the applicants.

[5]In terms of r 6.8 I am satisfied that:

(a)The applicants do not have the means to effect personal service of the documents upon Mr Barnes;

(b)Mr Barnes is aware of the proceedings and understands them;

(c)Mr Barnes has not supplied the applicants with his residential address;

(d)Mr Barnes has already sought advice in relation to the proceedings; and

(e)Mr Barnes has refused to accept service in an agreed manner for reasons that are unrelated to the merits of the application.

[6]    In these circumstances it is appropriate that substituted service upon Mr Barnes be ordered.

[7]    The applicant wishes to effect substituted service upon Mr Barnes by email. I am satisfied that Mr Barnes is a user of email and that he will receive emails to his email address [email protected].

Result

[8]The orders that I make are as follows:

(a)Personal service of the applicants’ originating application and supporting documents in this proceeding upon the second respondent is dispensed with;

(b)The originating application and supporting documents will be treated as having been personally served on the second respondent following the applicants completing the following steps:

(i)    sending a copy of the documents along with the sealed order of the court recording the orders made on this application to the second respondent at the email address [email protected];

(ii)    the documents in (i) above shall be treated as served upon the second respondent on receipt of a Request for Delivery Receipt or Read Receipt, or, if no such receipt is received after seven days of the email being sent.

[9]    The originating application is presently scheduled to be called before the Court on 12 December 2019. The case will be removed from the List on that day to allow substituted service to be effected upon Mr Barnes. The first hearing date will be enlarged to 27 February 2020.

[10]   Should Mr Barnes wish to oppose the application I direct that any opposition and affidavits are to be filed and served upon the applicant no later than 20 February 2020.

[11]The costs of this application are reserved.

O G Paulsen

Associate Judge