McAtamney v Allen

[2022] NZHC 3147

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2022-476-38

[2022] NZHC 3147

BETWEEN

PAULINE MARGARET McATAMNEY

Plaintiff

AND

ANNE MARIE ALLEN, JOHN DUNCAN McFARLANE and ELIZABETH MARY

McATAMNEY, as trustees of the Waimarie Second Family Trust
First Defendants

STEPHEN FRANCIS McATAMNEY and JOANNE STEWART McATAMNEY

Second Defendants

ANNE MARIE ALLEN
Third Defendant

ANNE MARIE ALLEN and STEPHEN

FRANCIS McATAMNEY, as trustees and executors of the Estate of Francis

Stevens McAtamney (deceased)

Hearing:	(Determined on the papers)
Counsel:	S D Campbell for Plaintiff
Judgment:	29 November 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

McATAMNEY v ALLEN [2022] NZHC 3147 [29 November 2022]

[1]The plaintiff applies on a without notice basis for directions as to service.

[2]        Having reviewed the material filed, I make directions as to service in terms of paragraphs 1(a) – 1(i) of the without notice application dated 21 November 2022 (the application).

[3]        One of the orders sought is that children of the parties in paragraph 1(a) – 1(f) of the application, whether they be minors or of age, be served with the proceeding.

[4]        I direct that in respect of those minors who are of age, they are to be personally served in the usual way. As to minors, there is an interim order that their interests be represented by their parents. Whether there should be separate representation for infant and unborn grandchildren has not been canvassed in the application.

[5]        Once the proceeding has been served in accordance with the directions that    I make, the issue of the representation of infant and unborn grandchildren can be addressed further by counsel at the first case management conference or earlier if that is considered appropriate.

[6]        An order is sought that a number of parties be served with the proceeding by serving their solicitors and in respect of other parties, service by email.

[7]        I am not prepared to make what amounts to an order for substituted service at this time. If the solicitors for some parties have already agreed to accept service then no order from the Court is required. Similarly, if parties have agreed to accept service by email then service pursuant to that agreement will be good service.   However,     I direct that minor grandchildren can be served via their parents.

[8]        Similarly, I do not make the order sought at para 5 for service on the companies listed in the application by way of post.

[9]        The short point is, no reason has been demonstrated as to why the normal rules in respect of personal service should be departed from. That it might be a more convenient method of service is not enough.

[10]      Accordingly, the plaintiff is to serve the proceedings in the ordinary way, that is, by personal service or by obtaining agreement from those concerned that the papers may be served at the party’s solicitor, by post or electronically. If attempts at personal service are unsuccessful then the appropriate application for substituted service can be made at that time.

Associate Judge Lester

Solicitors:
Wynn Williams, Christchurch (for Plaintiff)