Hemi v Tyler
[2019] NZHC 1114
•21 May 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2018-419-243
[2019] NZHC 1114
BETWEEN HOHUA WARREN HEMI
Plaintiff
AND
MICHAEL STEPHEN TYLER
Defendant
Hearing: 20 March 2019 Appearances:
J A MacGillivray & F G Biggs for Plaintiff M D Branch & K F Shaw for Defendant
Judgment:
21 May 2019
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 21 May 2019 at 12:30 pm Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Tompkins Wake, Hamilton Harkness Henry, Hamilton
HEMI v TYLER [2019] NZHC 1114 [21 May 2019]
[1] On 8 August 2018, Mr Hohua Hemi (the plaintiff) commenced a proceeding in this Court against Mr Michael Tyler (the defendant). Service of the proceeding was effected on the defendant’s solicitors, who he had authorised to accept service on his behalf. On 21 September 2018, the defendant filed an appearance under protest to jurisdiction. The plaintiff now applies for an order to set aside the defendant’s appearance under protest to jurisdiction. The application is opposed by the defendant.
Background
[2] In his statement of claim the plaintiff sets out the background and context of his claim against the defendant, which arises from a wider dispute between himself and his business partner, Mr Robert Stone (Mr Stone). The plaintiff pleads two causes of action. The first alleges that the defendant has acted in breach of his duties as trustee for the plaintiff of shares in Autoterminal New Zealand Limited (ATNZ). The second alleges that the defendant has breached fiduciary duties owed to the plaintiff.
[3] The plaintiff and Mr Stone entered into a business relationship around 1991 for the purpose of purchasing used cars in Japan and exporting them to New Zealand and elsewhere in the world. The plaintiff says that his partnership with Mr Stone was on the basis that they each had a half share or interest in all partnership assets, and would operate all aspects of the partnership business together for their joint and equal benefit.
[4] The plaintiff says that his business partnership with Mr Stone is conducted through a complex structure of corporate entities incorporated in various jurisdictions around the world, all of which are ultimately beneficially owned by himself and Mr Stone equally. The plaintiff says that one of the corporate entities in the partnership structure is ATNZ, which was incorporated in April 2000 at his and Mr Stone’s direction. Its role was to sell and distribute cars imported into New Zealand from Japan on behalf of IBC Japan Co Limited (IBC), which was the first corporate entity established by the partnership, and which undertakes the core business of the partnership, buying and exporting used cars from Japan around the world including to New Zealand.
[5] The plaintiff says that another corporate entity beneficially owned by Mr Stone and himself is iCOMM International Incorporated (iCOMM), which was incorporated in January 2005 under the laws of the Philippines, and is based in Cebu in the Philippines. iCOMM was established to provide accounting and office services to IBC and other corporate entities owned by the partnership business.
[6] The plaintiff alleges that when ATNZ was incorporated, he and Mr Stone employed the plaintiff’s brother, Mr Hoani Hemi, to manage the ATNZ business, to hold the position of director of the company, and to hold the shares of the company as bare trustee for the plaintiff and Mr Stone equally. In March 2001, at the plaintiff’s and Mr Stone’s direction, Mr Hoani Hemi transferred the shares he held in ATNZ to Auto Net, which is a company situated in the Cayman Islands and which is beneficially owned by the plaintiff and Mr Stone, each having a 50 per cent interest.
[7] The plaintiff alleges that upon the resignation of Hoani Hemi as the director of ATNZ in May 2004, he and Mr Stone appointed the defendant as director. The plaintiff says that in March 2009, at his and Mr Stone’s direction, Auto Net transferred its shares in ATNZ to the defendant to be held as bare trustee for the plaintiff and Mr Stone as to 50 per cent each, and on the basis that the defendant would exercise all rights in respect of the ATNZ shares as instructed by the plaintiff and Mr Stone. In his statement of claim the plaintiff alleges that the defendant holds the shares in ATNZ as bare trustee for Mr Stone and the plaintiff equally, being 5000 shares held on trust for each.
[8] The plaintiff says that he and Mr Stone employed the defendant around 1999 in a management role for their partnership business based in the Bahamas, and alleges that the defendant was aware from the outset that the plaintiff and Mr Stone each owned 50 per cent of the partnership business.
[9] The plaintiff says that his business relationship with Mr Stone deteriorated from around 2014 and has since led to legal proceedings between them. The plaintiff alleges that from around the same time his relationship with the defendant also deteriorated, and the defendant has since sided with Mr Stone, and acted on Mr Stone’s instructions in relation to the management of the partnership business and its corporate entities, and has refused to act on the instructions of the plaintiff.
[10] In his first cause of action the plaintiff seeks relief by an order of the Court requiring the defendant, as bare trustee of the plaintiff’s beneficial entitlement to 50 per cent of the ATNZ shares, to transfer those shares to him. That cause of action also alleges that the defendant has breached his duty not to profit from that trust by paying himself a shareholder salary from ATNZ.
[11] In his second cause of action the plaintiff claims that the defendant owes him fiduciary duties. He claims that the fiduciary duties arise by reason of the following:
(a)the defendant holds 50 per cent of the shares in ATNZ as bare trustee for him;
(b)the plaintiff and Mr Stone reposed significant trust and confidence in the defendant by appointing him director and president of iCOMM on the basis he would act in the interests of the plaintiff and Mr Stone jointly;
(c)the plaintiff and Mr Stone reposed significant trust and confidence in the defendant by appointing him as director and CEO of ATNZ and allowing him to hold legal ownership of the shares in ATNZ, thereby giving him complete legal control over that company, on the understanding that he would act in the interests of the plaintiff and Mr Stone jointly;
(d)the plaintiff and Mr Stone reposed significant trust and confidence in the defendant by sharing confidential information concerning the affairs of their business partnership; and
(e)the plaintiff is in a position where significant aspects of his business interests are heavily reliant on the actions of the defendant, and he is vulnerable to those actions.
[12] The plaintiff alleges that the defendant has breached his duties of loyalty, impartiality, candour and disclosure, and avoiding a conflict of interest, by preferring
the interests of Mr Stone over the plaintiff; paying himself a shareholder salary from ATNZ without the agreement of the plaintiff and Mr Stone; acting in his own personal financial interests to the detriment of the plaintiff; refusing to provide information in relation to iCOMM affairs to the plaintiff; refusing to provide information in relation to ATNZ’s affairs to the plaintiff; and having been made privy to Mr Stone’s strategy and plans in relation to the partnership dispute that has arisen between Mr Stone and the plaintiff, has kept this secret from the plaintiff.
[13] In the defendant’s protest to jurisdiction filed on 21 September 2018 he says that New Zealand is not the proper jurisdiction for determination of the proceeding because:
(a)the shares which the plaintiff claims are held on trust for him, are in fact held on trust for Autonet, a company registered in the Cayman Islands;
(b)no witnesses, other than the defendant himself, reside in New Zealand;
(c)the dispute is part of a broader dispute already the subject of legal proceedings in Japan and the Philippines; and
(d)the proper jurisdiction for this dispute is either Japan, the Philippines or the Cayman Islands as the events that are alleged by the plaintiff to have resulted in the shares in ATNZ being held on trust for the plaintiff, and the establishment of the relationship giving rise to fiduciary duties being owed to the plaintiff, all occurred outside New Zealand.
[14] In the plaintiff’s application to set aside the defendant’s protest to jurisdiction he says New Zealand is the proper jurisdiction because:
(a)the defendant is a New Zealand citizen and resident;
(b)the plaintiff is a New Zealand citizen and divides his time between NZ and Japan;
(c)the claim relates in large part to the defendant’s conduct as shareholder and director of ATNZ;
(d)the majority of the acts or omissions that form the basis of the plaintiff’s claim against the defendant occurred in New Zealand;
(e)the claims are made under New Zealand law, and it would not be convenient to have a foreign Court adjudicate on them; and
(f)as the High Court is already seized of a number of proceedings relating to the wider dispute, the subject matter of which is closely connected to this proceeding, it is convenient for the High Court to also determine this claim.
[15] The defendant’s grounds of opposition to the application to set aside his protest to jurisdiction substantially repeat the same grounds as are relied on in his appearance under protest to jurisdiction.
[16] The defendant submits that the Court should decline jurisdiction on two alternative grounds. First, that a New Zealand Court does not have jurisdiction to grant the relief sought by the plaintiff as the shares in ATNZ are not held on trust for him. Second, that in any event, New Zealand is not the forum conveniens for the hearing and determination of this matter.
High Court Rule 5.49
[17] An appearance under protest to jurisdiction and an application to the Court to set aside an appearance both fall under r 5.49 of the High Court Rules 2016. That rule relevantly provides:
5.49 Appearance and objection to jurisdiction
(1)A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds for it.
(2)The filing and serving of an appearance does not operate as a submission to the jurisdiction of the court.
…
(5)At any time after an appearance has been filed, the plaintiff may apply to the court by interlocutory application to set aside the appearance.
(6)The court hearing an application under subclause (3) or (5) must,—
(a)if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; and
(b)if it does not dismiss the proceeding under paragraph (a), set aside the appearance.
(7)To the extent that an application under this rule relates to service of process effected outside New Zealand under rule 6.27 or 6.28, it must be determined under rule 6.29.
…
(8)The court, in exercising its powers under this rule, may do so on any terms and conditions the court thinks just and, in particular, on setting aside the appearance it may extend the time within which the defendant may file and serve a statement of defence and may give any directions that appear necessary regarding any further steps in the proceeding.
Analysis
Application to set aside appearance under protest
[18] Mr MacGillivray for the plaintiff says that as service of the proceeding has been validly effected in New Zealand, this Court has jurisdiction to hear and determine the proceeding, and the only remaining issue is that of forum conveniens.
[19] Mr Branch for the defendant, first addresses the merits of the plaintiff’s claim. He submits that the shares the plaintiff alleges the defendant holds on trust for him, are in fact held on trust for a third party, namely Auto Net.
[20]Mr Branch relies a passage from McGechan, where it is said:1
The focus of the Court in considering an application to dismiss for want of jurisdiction must be on the allegations in the statement of claim and the
1 McGechan on Procedure (online ed, Thomson Reuters) at [HR 5.49.09].
affidavit evidence the plaintiff has put forward in support of them. The Judge will have regard to the plausibility of that evidence, in light of all of the material before the Court, including that in the defendant’s affidavits.
[21] Mr Branch notes that the plaintiff has not filed any evidence in support of his claim that the defendant holds the shares in ATNZ on bare trust for him, and he has not filed any evidence contesting the defendant’s evidence in his affidavit filed in support of his notice of opposition, in which he says that the shares are held on bare trust for Auto Net. Nor has the plaintiff attempted to explain the inconsistency of his affidavit evidence in other legal proceedings filed in this Court, and related to the on- going dispute between the plaintiff and Mr Stone, in which he stated that, “Mr Tyler holds his shares in ATNZ on trust for Auto Net.”2
[22] Mr Branch says that there is therefore no dispute about who the beneficial owner of the shares is, and it follows that there is a lack of jurisdiction because the plaintiff does not have standing, and no Court could grant him the relief he seeks.
Discussion
[23] In my view however, the statement relied on by counsel in McGechan does not refer to a proceeding where the defendant has been served in New Zealand, as is the case here. The statement in McGechan is drawn from the Court of Appeal decision in Stone v Newman.3 That case concerned service on defendants in Australia pursuant to the former r 219 of the High Court Rules,4 which provided for the circumstances in which service could be effected on a party outside New Zealand without the Court’s leave. The defendants entered an appearance under the former r 131 of the High Court Rules,5 which provided for the filing and service of an appearance under protest to jurisdiction, for the proceeding to be dismissed on the grounds that the plaintiffs did not have a good arguable case. In the High Court, Williams J held that there was a good arguable case and that New Zealand was the most appropriate forum.6 He
2 CIV-2018-419-000045.
3 Stone v Newman (2002) 16 PRNZ 77 (CA).
4 The current equivalent provision is r 6.27 of the High Court Rules 2016.
5 The current equivalent provision is r 5.49 of the High Court Rules 2016.
6 Newman v Stone (2002) 7 NZBLC 103,514 (HC).
declined leave to appeal. The defendants then applied to the Court of Appeal for special leave.
[24] The Court of Appeal also declined to grant special leave to appeal. In doing so the Court considered whether there was a requirement that there be a good arguable case on the merits, when a protest as to jurisdiction was brought under r 131 of the Rules concerning service effected pursuant to r 219. The Court of Appeal referred to the decisions of both the Privy Council and the Court of Appeal in Kuwait Asia Bank EC v National Mutual Life Nominees Ltd, both to the effect that despite the fact r 219 provides that a plaintiff does not need the leave of the Court to serve proceedings on a party outside of New Zealand, under r 131, the High Court retains a discretionary power to decline jurisdiction, should a protest be entered.7
[25] The principle to be applied in determining an application to dismiss a proceeding for want of jurisdiction, where a foreign party has been served, requires the Court to consider whether there are sufficient grounds for it to assume jurisdiction.8 In doing so, the Court should consider the strength of the plaintiff’s case against the foreign party.9 The rationale being that a foreign resident will not lightly be subjected to the local jurisdiction, which to him or her is a foreign jurisdiction.10
[26] In Johnson v Taylor Bros & Co Ltd, Lord Dunedin observed that different considerations arise where a Court is deciding whether to assume jurisdiction over a foreign party served abroad, as opposed to where a party is served within the Court’s jurisdiction.11 He said:12
I think it is legitimate to begin by considering the genesis of the rule. I understand that jurisdiction according to English law is based on the act of personal service and that if this is effected the English law does not feel bound
7 Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1991] 1 AC 187, [1990] 3 WLR 297;
Kuwait Asia Bank EC v National Mutual Life Nominees Ltd at [1989] 2 NZLR 50 (CA).
8 Kuwait Asia Bank EC v National Mutual Life Nominees Ltd at [1989] 2 NZLR 50 (CA) at 54.
9 Kuwait Asia Bank EC v National Mutual Life Nominees Ltd at [1989] 2 NZLR 50 (CA) at 54.
10 Stone v Newman (2002) 16 PRNZ 77 (CA) at [24]; Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1991] 1 AC 187, [1990] 3 WLR 297 at 415; Kuwait Asia Bank EC v National Mutual Life Nominees Ltd at [1989] 2 NZLR 50 (CA) at 54; Société Générale de Paris v Dreyfus
Bros (1885) 29 CH D 239 at 243. See also Poynter v Commerce Commission [2010] NZSC 38,
[2010] 3 NZLR 300 at [30]-[31].
11 Johnson v Taylor Bros & Co Ltd [1920] AC 144.
12 At 154.
by the Roman maxim “Actor sequitur forum rei”.13 It is far otherwise in other systems where service is in no sense a foundation of jurisdiction, but merely a sine qua non before effective action is allowed. Now service being the foundation of jurisdiction, it follows that that service naturally and normally would be service within the jurisdiction. But there is an exception to this normal rule, and that is service out of the jurisdiction. This however is not allowed as a right but is granted in the discretion of the judge as a privilege, and the rule in question here prescribes the limits within which that discretion should be exercised.
[27]As Kos J said in Discovery Geo Corporation v STP Energy Pte Ltd:14
First, jurisdiction at heart is dependent on valid service on the defendant.
[28] In Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd, the Court of Appeal considered rules 5.49 and 6.27 - 6.29 and compared them to the former rules that they replaced.15 Addressing Rule 5.49 the Court said:16
Rule 5.49 sets out the process to be followed when a defendant objects to the jurisdiction of the Court. With one exception, the new rule does not depart significantly from the old. The key features of r 5.49 are:
• The rule applies where a defendant seeks to object to the jurisdiction of the Court in respect of proceedings served either within New Zealand or overseas.
• The defendant may object to the jurisdiction within the time allowed for filing a statement of defence by filing and serving an appearance stating the objection and the grounds for it.
• Any such appearance does not operate as a submission to the jurisdiction of the Court.
• A defendant who has filed an appearance may apply to the Court to dismiss the proceeding on the ground of lack of jurisdiction and the plaintiff may apply to set aside the appearance.
• In cases where the proceedings are served within New Zealand, the Court determines the applications under subrr (4) and (6) as the case may be.
• However, in a departure from the old rule, applications relating to service of process effected outside New Zealand under r 6.27 or r 6.28 must be determined under r 6.29; which is an entirely new provision.
13 The plaintiff follows the matter’s forum.
14 Discovery Geo Corporation v STP Energy Pte Ltd [2012] NZHC 3549, [2013] 2 NZLR 122 at [39].
15 Wing Hung Printing v Saito Offshore [2011] 1 NZLR 754.
16 At [21].
• In exercising the powers under the rule, the Court has wide powers to do so on any terms and conditions the Court thinks fit and may give appropriate directions.
[29] Rules 6.27 and 6.28 provide for service out of New Zealand without leave and with leave respectively. As noted by the Court of Appeal in Wing Hung, Rule 6.29 entitled, “Court’s discretion whether to assume jurisdiction”, had no equivalent under the former rules. It applies where proceedings are served out of New Zealand with and without leave,17 and also where service has been validly effected within New Zealand.18
[30] Rule 6.29(1) provides that, where a proceeding is served outside New Zealand without leave, and where the court’s jurisdiction is protested, the court must dismiss the proceeding unless the party effecting service establishes that there is “a good arguable case” that the claim falls within one or more of the circumstances described in rule 6.27, and the court should assume jurisdiction by reason of the matters set out in rule 6.28(b) to (d).
[31] Rule 6.29(3) applies where valid service has been effected within New Zealand, and provides:
(3) When service of process has been validly effected within New Zealand, but New Zealand is not the appropriate forum for trial of the action, the defendant may apply for a stay, or for a dismissal of the proceeding under rule 15.1.
[32] It therefore appears that while the issue of whether the party effecting service has an “arguable case” is relevant to the question of jurisdiction where service has been effected outside New Zealand, that issue does not arise where service has been effected within New Zealand. Where service has been effected within New Zealand and jurisdiction is challenged, the sole issue is whether New Zealand is the forum conveniens.
17 High Court Rules 2016, rr 6.29(1) and (2).
18 High Court Rules 2016, r 6.29(3).
[33] There is no dispute here, that the defendant has been validly served with the proceeding, and that such service has taken place inside the territorial limits of New Zealand.
[34] Rule 5.49(1) provides that a defendant who objects to the jurisdiction of the Court may file an appearance stating his or her objection and the grounds for it. Thereafter, the defendant or the plaintiff may apply to the Court for either the dismissal of the proceeding or for the appearance under protest to be set aside, respectively.19 The Court on hearing such an application must either dismiss the proceeding if satisfied it has no jurisdiction, or alternatively, set aside the appearance under protest.20
[35] Where the appearance under protest relates to service outside of New Zealand, in accordance with rr 6.27 or 6.28, any application for dismissal of the proceeding or to set aside the protest must be dealt with under r 6.29.21 While the correct procedure is to file an appearance as to protest pursuant to r 5.49, the matters for the Court to consider are considerably wider, and include whether there is a good arguable case.22
[36] Accordingly, while the issue of whether the party effecting service of a proceeding outside New Zealand has a good arguable case is a relevant consideration as regards jurisdiction, a challenge to the merits of a claim brought in a proceeding where valid service has been effected in New Zealand does not provide the grounds of a protest to jurisdiction.
[37] If a defendant is served with a proceeding within New Zealand, and their real objection concerns the substance and merits of the plaintiff’s claim, then the appropriate procedure by which to seek relief is pursuant to the strike-out or summary judgment jurisdictions in parts 12 and 15 of the High Court Rules. Rule 15.1(a) provides that a court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action. Such an application remains available to the defendant here.
19 High Court Rules 2016, rr 5.49(3) and (5).
20 High Court Rules 2016, r 5.49(6).
21 High Court Rules 2016, r 5.49(7).
22 High Court Rules 2016, r 6.29(1)(a)(i).
[38] However, here where the defendant has been validly served with the proceeding within New Zealand, and the plaintiff’s allegations made in the statement of claim largely relate to his conduct as alleged trustee for the plaintiff as regards shares in a New Zealand company, and in relation to whether he had breached fiduciary duties owed to the plaintiff relating to the basis of the arrangements by which with the plaintiff he held the position as shareholder and director of ATNZ, I consider that the Court has jurisdiction to determine the matter.
Forum conveniens
[39]That leaves the issue of forum conveniens.
[40] Mr MacGillivray says that New Zealand is the forum conveniens, as the defendant resides in New Zealand and the plaintiff divides his time between New Zealand and his overseas interests.
[41] Mr MacGillivray notes that there are presently four other proceedings underway in New Zealand which relate to or arise from the dispute between the plaintiff and Mr Stone, which include civil proceedings instigated by the defendant himself in which ATNZ has brought a claim against IBC Japan.23 Counsel submits that given that all these proceedings arise from the same broader dispute between the plaintiff and Mr Stone and the defendant is already actively involved in some of them, New Zealand is the forum conveniens for determination of the current proceeding.
[42] Mr Branch made a number of submissions on this ground. First, he submits that the correct parties to the dispute over the shares in ATNZ (other than the defendant) reside in the Cayman Islands and that in any event, the plaintiff resides in Japan.
[43] Second, he submits that the law governing the beneficiary of the trust will be the law of the Cayman Islands, as that is where the trust was established.
23 CIV-2018-419-294 Autoterminal New Zealand Limited v IBC Japan.
[44] Third, counsel says the most convenient forum is not New Zealand, as Auto Net which he submits is the proper plaintiff, is a Cayman Islands based company.
[45] Fourth, counsel says that the relief sought by the plaintiff cannot be granted by a New Zealand Court, because he is not the beneficial owner of any ATNZ shares.
[46] Fifth, counsel says that there are no other relevant proceedings currently taking place in New Zealand involving either Auto Net, iCOMM or the defendant himself.
Discussion
[47] Both counsel agree that the Court of Appeal’s summary in Wing Hung sets out the relevant factors relating to the question of forum conveniens.24 The Court of Appeal said:
[45] In considering whether another forum is more appropriate, the Court looks for the forum with which the proceeding has the most real and substantial connection. Relevant factors include issues of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business.
[46] We accept that other relevant considerations also bear on the issue of appropriate forum. These include the cautious approach already discussed to the subjection of foreigners to the jurisdiction of a New Zealand court; whether other related proceedings are pending elsewhere; whether the New Zealand court would provide the most effective relief or whether a foreign court is in a better position to do so; whether the overseas defendants will suffer an unfair disadvantage if a New Zealand court assumes jurisdiction; and any choice of jurisdiction previously agreed by the parties.
[48] Mr Branch’s submissions for the defendant were substantially founded on the proposition that the ATNZ shares are not held on trust for the plaintiff , but are instead held for Auto Net, despite what is alleged by the plaintiff in his statement of claim. However, that is the very issue at the heart of this case, and at this stage of the proceedings, the Court will determine the issue of the appropriate forum for the proceeding, by reference to the statement of claim as pleaded.
[49] I note the defendant’s submission that the plaintiff has stated in an affidavit sworn and filed in other proceedings that the defendant holds his shares in ATNZ on
24 Wing Hung Printing v Saito Offshore [2011] 1 NZLR 754.
trust for Auto Net. While that statement is prima facie inconsistent with the allegations contained in the plaintiff’s statement of claim, the Court has not heard any evidence or explanation by the plaintiff regarding that statement. Suffice to say that at this stage of the proceedings, the Court should proceed upon the assumption that the allegations set out in the statement of claim are capable of being made out.
[50] The plaintiff has pleaded that Auto Net transferred the shares it held in ATNZ on trust to be held by the defendant for the plaintiff beneficially. Both the subject matter of the purported trust and the alleged trustee thereof are located in New Zealand. ATNZ is a New Zealand registered company. The defendant resides in New Zealand and is a New Zealand citizen. There is therefore a real and substantial connection between the parties and the shares in ATNZ, which are subject of the plaintiff’s claim, and New Zealand. Moreover, the proceedings can be conveniently heard by a court in New Zealand. The plaintiff is also a New Zealand citizen, who will travel to New Zealand for the hearing of the proceeding. In my view there is no other forum or jurisdiction which would be more appropriate or more convenient to the parties than New Zealand.
[51] I also note that the wider dispute between the plaintiff and Mr Stone is the subject of other litigation presently underway in New Zealand, and that those proceedings involve issues and evidence that are common to the present proceedings. Although Mr Stone currently resides in the Philippines and Japan he has either caused proceedings to be commenced in New Zealand against the plaintiff or has himself taken steps in proceedings in New Zealand in relation to those other related proceedings. Obviously both the plaintiff and Mr Stone could travel to New Zealand to attend the hearing of this proceeding
[52] Having regard to the considerations identified by the Court of Appeal, I consider that the appropriate jurisdiction and forum conveniens for this matter to be heard is here in New Zealand. On the basis of the foregoing, I consider that New Zealand is the forum in which this matter should be heard.
Result and directions
[53] The application to set aside the appearance under protest to jurisdiction is granted, and I make an order setting aside the defendant’s appearance under protest to jurisdiction dated and filed 21 September 2018.25
[54] I also make a timetable order and direct the defendant to file and serve his statement of defence within 21 working days from the date of delivery of this judgment.
[55] The plaintiff is entitled to costs. The parties are to file short memoranda, of no more than three pages in length, directed to the issue of costs. I direct that the plaintiff is to file and serve his costs memorandum within 10 working days from the date of delivery of this judgment, and the defendant will have a further five working days from that date to file his costs memorandum. Following the filing of the costs memoranda, I shall determine the question of costs on the papers.
Paul Davison J
25 High Court Rules 2016, r 5.49(6)(b).
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