Gvi Logistics Limited v The Aquamamma Group Pty Limited

[2023] NZHC 2658

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-602

[2023] NZHC 2658

BETWEEN

GVI LOGISTICS LIMITED

Plaintiff

AND

THE AQUAMAMMA GROUP PTY LIMITED

First Defendant

EMMA GIBSON

Second Defendant

Hearing:	(On the papers)
Counsel:	M J Burcoski and L G Wells for Plaintiff
Judgment:	22 September 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(substituted service)

GVI LOGISTICS LIMITED v THE AQUAMAMMA GROUP PTY LIMITED [2023] NZHC 2658

[22 September 2023]

[1]    The plaintiff applies for substituted service orders against the defendants. Perhaps more correctly as regards  the  first  defendant,  The Aquamamma  Group Pty Limited  (Aquamamma),  an  order  is   sought   that   service   completed   on 16 February 2023 at the company’s registered office be deemed effective service.

[2]    As regards the second defendant, Ms Gibson, conventional substituted service is sought, that is, the documents be deemed served if they are left at an address in Paddington, New South Wales, Australia and advertised in a Sydney (Australia) newspaper.

Service on Aquamamma

[3]    The Australian Companies Office records confirm that a Brownell Drive address for Aquamamma is its registered office. Counsel have provided evidence that on 19 May 2022, a notification was filed with the Australian Companies Office that  the  Brownell  Drive  address  was  no  longer  the  company’s  registered office. However, on 29 June 2022, the registered office for the company was again listed as the Brownell Drive address.

[4]    The plaintiff had the proceedings served at the Brownell Drive property on  16 February 2023. The affidavit of the process server confirms the papers were slid under the door at that address. The process server, in his report, recorded that while no one was present at the office at the time, it appeared to be occupied.

[5]    There is no suggestion the documents have been returned to the plaintiff’s solicitors, or that any notification has been received that the occupiers were unable to bring the documents to the attention of Aquamamma, or indeed, that the address is not a current registered office of the company.

[6]    Plaintiff’s counsel notes, however, that the title for the Brownell Drive property records it was sold on 4 June 2021. Of course, a company does not need to own its registered office.   Given the company confirmed the Brownell Drive address  as    its registered office on 29 June 2022 and given, as I have said, the office is occupied and the plaintiff’s solicitors have not had any response from the occupiers of the

property stating they are unable to make the documents known to Aquamamma, I see no reason to conclude that effective service has not taken place.

[7]    For the avoidance of any doubt in the matter, a copy of this judgment is to be sent to Aquamamma’s director, Mr Robert Bates, at the email address given in the application dated 19 September 2023 at paragraph 1.1(b)(i).

[8]    Accordingly, there is an order that good and effective service has taken place unless Mr Bates contacts the plaintiff to dispute good service within three working days of the email being sent, which I have just referred to.

[9]    In respect of service on the second defendant, the order sought is that the proceedings be served at an address in Paddington, New South Wales, Australia, and advertised in a Sydney newspaper. The evidence shows that the address given is owned by the second defendant, and the process server’s report records that upon attending the property, a nanny advised that “Emma” would be home the next day. However, despite several attempts to serve the papers on the second defendant at the Paddington address, service could not be completed.

[10]   Accordingly, I am satisfied, having regard to the evidence of the process server, that reasonable attempts have been made to serve the proceedings in this matter on Ms Gibson and that it cannot be promptly served.

[11]   I am further satisfied that the following directions represent a method of service likely to bring the documents to the attention of Ms Gibson.

Orders

[12]Accordingly, I make the following orders:

(a)Personal service of the statement of claim, notice of proceeding, notice giving prescribed information for defendants served in Australia, and initial disclosure (the Court documents), is dispensed with.

(b)Service on Ms Emma Gibson will be deemed to be effective upon the completion of the following two steps:

(i)the Court documents are to be left with an adult occupant at the Paddington   address    given    in    the    application    dated 19 September 2023 at paragraph 1.2(a)(i), together with a copy of this order and if no adult occupant is present, the documents along with this order are to be affixed to the door of the address; and

(ii)by way of advertising in a Sydney newspaper.

Costs

[13]The costs of this application are reserved.

Associate Judge Lester

Solicitors:
Saunders Robinson Brown, Christchurch