Midland Properties (NZ) Limited v Dawson

[2020] NZHC 453

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000724

[2020] NZHC 453

BETWEEN

MIDLAND PROPERTIES (NZ) LIMITED

Plaintiff

AND

ROBERT PETER JOHN DAWSON

Defendant

Hearing:	Determined on the papers
Counsel:	A D Marsh for Plaintiff
Judgment:	10 March 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 10 March 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

MIDLAND PROPERTIES (NZ) LTD v DAWSON [2020] NZHC 453 [10 March 2020]

[1]The plaintiff has commenced proceedings against the defendant claiming

$373,757 pursuant to an agreement to lease of 5 July 2018 between the plaintiff and Cryptopia Ltd (Cryptopia) which was guaranteed by the defendant. The defendant is, and was at all material times, a director and shareholder of Cryptopia.

[2]        The plaintiff has applied for an order dispensing with personal service and authorising substituted service of the proceeding upon the defendant.

[3]        The application is made in reliance upon r 6.8 High Court Rules 2016. It is made on a without notice basis. Obviously requiring service of the application upon the defendant would defeat its purpose and cause undue delay and prejudice to the plaintiff.

[4]Rule 6.8 provides:

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).

[5]        The evidence before me is contained in an affidavit of Clive Martin Williams and satisfies me as follows:

(a)The defendant is a director and shareholder of Cryptopia and in Companies Office records his residential address is 88 Mustang Avenue, Wigram, Christchurch.

(b)Cryptopia has gone into liquidation and the liquidators are David Ian Ruscoe and Malcolm Russell Moore of Grant Thornton New Zealand Limited. It would be expected that the liquidators would have contacted the defendant in the course of the liquidation.

(c)After the plaintiff commenced this proceeding, Mr Williams was instructed to serve the originating documents upon him at 88 Mustang Avenue, Wigram, Christchurch. These consist of the notice of proceeding, statement of claim and initial disclosure documents.

(d)Mr Williams visited the address on four occasions but could not locate the defendant.

(e)Mr Williams also rang and left messages on what he understood to be the defendant’s cell phone number on two occasions but received no responses to those messages.

(f)Enquiries led Mr Williams to understand that a possible address for service on the defendant was 1/52 Karanga Road, Dunsandel. He visited that address on 10 February 2020 and spoke to the defendant’s mother who told him that the defendant was living elsewhere but that she was in contact with him. Mr Williams left his business card with

her and asked her to have the defendant contact him, but he has not heard from the defendant.

[6]In these circumstances I am satisfied that:

(a)the plaintiff has made reasonable efforts to effect personal service of the proceeding on the defendant;

(b)the plaintiff is not able to effect personal service of the proceeding upon the defendant;

(c)service of the proceeding upon the defendant’s mother at 1/52 Karanga Road, Dunsandel is likely to bring it to the attention of the defendant;

(d)the liquidators are likely to have had some contact with the defendant and, potentially at least, have contact details for him; and

(e)the requirements of r 6.8 are met and it is appropriate that I dispense with personal service and order substituted service of the proceeding on the defendant.

[7]        The plaintiff seeks an order that substituted service be effected upon the defendant’s mother at 1/52 Karanga Road, Dunsandel and upon the liquidators. I consider that in the circumstances that is likely to bring the proceeding to the defendant’s attention.

Result

[8]I make the following orders:

(a)personal service of the originating documents in this proceeding on the defendant is dispensed with;

(b)service of this proceeding upon the defendant is to be effected by:

(i)leaving the notice of proceeding, statement of claim, initial disclosure documents, this ruling and the sealed order for substituted service with the defendant’s mother at the address 1/52 Karanga Road, Dunsandel; and

(ii)leaving the said documents at the offices of Grant Thornton New Zealand Limited, Level 15 Grant Thornton House, 215 Lambton Quay, Wellington;

(c)service of the proceeding shall be deemed to be effected three working days after completion of the steps referred to in paragraphs [8](a) and [8](b)(i) and (ii).

[9]        I direct that the defendant’s mother and the liquidators are to bring the documents to the attention of the defendant immediately if they are in contact with him.

[10]The costs of this application are reserved.

[11]      I reserve leave for any party to apply for such directions as may be required consequent upon the making of these orders.

O G Paulsen Associate Judge

Solicitors:
Kearney & Co, Christchurch