Gillespie v Hart

[2022] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2022-418-000003

[2022] NZHC 1110

UNDER

the Property Law Act 2007

IN THE MATTER

of an application for a sale order

BETWEEN

CHRISTOPHER JASON GILLESPIE

Applicant

AND

RACHEL JACQUELINE HART

Respondent

Hearing:	On the papers
Counsel:	G E Slevin for Applicant
Judgment:	19 May 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 19 May 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GILLESPIE v HART [2022] NZHC 1110 [19 May 2022]

[1]        The applicant has commenced this proceeding seeking orders under ss 339, 342 and 343 of the Property Law Act 2007 in relation to a property at Nelson which he co-owns with the respondent.

[2]        Attempts to effect service of the proceeding on the respondent have proved unsuccessful.

[3]        The applicant applies for an order dispensing with personal service and authorising substituted service of the proceeding by affixing documents to the front door of a property at Greymouth where the respondent resides, or by such other method as the Court may require.

[4]        The application is made in reliance upon r 6.8 High Court Rules 2016. It has been made on a without notice basis, which is clearly appropriate. To require personal service of this application on the respondent would defeat the purposes of the application itself.

[5]Rule 6.8 provides:

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).

[6]        The evidence before me is contained in affidavits of the applicant and Karen Ann Da Via. Based on the evidence that is before me, I am satisfied as follows:

(a)the applicant has the current residential address and cellphone number of the respondent;

(b)the respondent resides at an address in Greymouth (as identified in para

[1]  (b) of the application) where attempts to serve the proceeding have been made;

(c)reasonable efforts have been made on several occasions to serve the proceeding on the respondent at her residential address;

(d)further efforts have been made to contact the respondent on her cellphone;

(e)the respondent is aware that attempts are being made to serve her with court documents and is avoiding service.

[7]        In these circumstances, it is not reasonable to expect the applicant to continue to make fruitless attempts at personal service. The respondent has not cooperated in making arrangements for service of the proceeding. I am satisfied the requirements of r 6.8 are met and it is appropriate that I dispense with personal service of the proceeding and order substituted service upon the respondent. I am also satisfied that if substituted service is effected in the manner set out below, the court documents will come to the attention of the respondent.

Result

[8]The orders I make are as follows:

(a)Personal service upon the respondent of the following documents (the originating documents) in this proceeding is dispensed with, namely:

(i)Application without notice for leave to commence a proceeding by way of originating application and directions as to service;

(ii)Memorandum of counsel in support of the without notice application;

(iii)Originating application for orders for sale of the property and division of sale proceeds;

(iv)Affidavit of Christopher Jason Gillespie in support of the originating application for orders for sale of the property and division of sale proceeds;

(v)Minute of Associate Judge Paulsen dated 11 April 2022;

(vi)This judgment; and

(vii)The sealed order on this application.

(b)Service of the originating documents shall be effected in the following manner:

(i)by leaving the originating documents with an adult occupant of the property identified at para [1](b) of the notice of application, or if no such person is present or willing to accept the originating documents, by leaving them in an envelope affixed to the front door of the property; and

(ii)forthwith upon completion of the above, the applicant’s solicitor or counsel sending a text message to the respondent to her cellphone number (identified in para [6] of Ms Da Via’s affidavit) which shall read as follows:

Christopher Jason Gillespie has issued proceedings against you in the High Court at Greymouth under CIV-2022-418-3. The High Court has made orders dispensing with personal service of the court documents upon you and authorising substituted service. Substituted service was effected by leaving the court documents at the property at [respondent’s address to be entered] on [date to be entered]. Service of the court documents upon you is deemed to have been completed on the day you are sent this text message, that is [enter date].

The Court has also directed that the proceeding will be called before the High Court at Greymouth at 11am on 27 June 2022.

Christopher Jason Gillespie is represented by Connors Legal, PO Box 369, Greymouth (Kelsey Mundy) Telephone [phone]. Copies of the court documents can be obtained from Connors Legal or from the offices of the High Court at Greymouth.

(c)Service of the proceeding shall be deemed to have been effected upon completion of the steps in [8](b)(i) and (ii) above.

[9]The costs of this application are reserved.

[10]      This case shall be called in the Greymouth List for mention at 11.00 am on 27 June 2022.

[11]      I reserve leave for either party to apply for further directions as may be required.

O G Paulsen Associate Judge

Solicitors:
Connors Legal (Kelsey Mundy), Greymouth