Nicholas v Carter

[2025] NZHC 1174

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-176

[2025] NZHC 1174

BETWEEN

PAUL GERARD NICHOLAS and PENNY MARGARET EGGELTON
Plaintiffs

AND

JOHN ANDREW CARTER

Defendant

Hearing:	On the papers
Counsel:	P M Smyth for Plaintiffs
Judgment:	15 May 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 15 May 2025 at 11.15 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

NICHOLAS v CARTER [2025] NZHC 1174 [15 May 2025]

[1]                 The plaintiffs have applied for an interim injunction to restrain the defendant from interfering with their use of a right-of-way. Although the application was originally made on a without notice basis, on 23 April 2025 Dunningham J ordered that the application proceed on notice. Subsequent attempts to serve the defendant with the proceeding have been unsuccessful. The plaintiffs now apply for substituted service.

[2]The application is made under r 6.8 of the High Court Rules 2016. It 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).

[3]                 To obtain an order for substituted service an applicant will generally be required to show that:

(a)reasonable efforts have been made to serve documents upon another party;

(b)the documents cannot be promptly served or have come to the knowledge of the person to be served; and

(c)the proposed method of substituted service will be likely to bring the documents to the notice of the person to be served.

Reasonable efforts to effect service

[4]                 The evidence shows that although the application for an interim injunction was made on a without notice basis attempts were made to serve the defendant with it at his residential address. A process server, Tony Hamilton, called to the defendant’s address during the evening of 17 April 2025 and the morning of 19 April 2025 but nobody was present at the property.

[5]                 Subsequent to Dunningham J making the direction that the interim injunction application was to proceed on notice, the following attempts were made to serve the defendant:

(a)A process server, Peter Kaa, called to the defendant’s address at

11.30 am on 23 April 2025, nobody was present at the property.

(b)Mr Kaa telephoned the defendant twice on 23 April 2025 and again on 26 April 2025 in an attempt to arrange service. On two of those occasions the defendant did not answer the call. The defendant answered one of the calls but refused to provide Mr Kaa with any information regarding his whereabouts and refused to meet to accept service of the documents.

(c)Mr Hamilton telephoned the defendant at 12.08 pm on 28 April 2025. The phone call was not answered and the call went to voicemail.

(d)Mr Hamilton telephoned the defendant again at 1.02 pm on 28 April 2025. The call was not answered, and Mr Hamilton left a voicemail explaining that he was trying to serve court documents.

(e)At 1.27 pm on 28 April 2025, Mr Hamilton sent the defendant a text message explaining that he had court documents for him and asking to meet.

(f)The defendant called Mr Hamilton back at 1.32 pm on 28 April 2025. During that call the defendant made it clear to Mr Hamilton that he was not willing to accept service.

(g)Mr Hamilton called the defendant again at 1.38 pm on 28 April 2025. Again, the defendant made it clear that he was not willing to accept service and told Mr Hamilton not to call him back.

[6]                 I am satisfied the plaintiffs have made reasonable attempts to serve the defendant.

Documents cannot be promptly served

[7]                 I am satisfied, based on the matters referred to above, that the documents cannot be promptly served upon the defendant who knows that attempts are being made to serve him with Court documents and is unwilling to make arrangements to receive them.

Would service in the manner proposed bring the documents to the defendant’s attention?

[8]                 The application seeks an order that substituted service of the proceedings on the defendant be effected in the following manner:

(a)leaving the documents with an adult occupant at the defendant’s residential address and if no adult is present and prepared to accept service of the documents, by taping them to the fence outside the property in a sealed envelope for the attention of the defendant; and

(b)notifying the defendant by text message of the step taken in (a) above.

[9]                 I am satisfied the documents will come to the defendant’s attention if served in the manner proposed. The defendant’s residential address and cellphone number are known and he has responded to calls and text messages to his cellphone. I will add to the orders sought a requirement that the text message must include advice that a copy of the documents can be obtained from the High Court and the plaintiff’s solicitors along with the contact details for them both.

[10]              It is appropriate in these circumstances that an order for substituted service be made.

Result

[11]              I dispense with personal service upon the defendant of the documents referred to at paragraph [1](a) of the plaintiffs’ application for substituted service (the documents).

[12]              Service of the documents along with a copy of the sealed order made on this application is to be effected in the following manner:

(a)Leaving a copy of the documents and the sealed order with an adult occupant at the defendant’s residential address referred to at paragraph

[1]   of the notice of application for substituted service. If no adult is present and prepared to accept service of the documents, the documents are to be taped to the fence outside the property in a sealed envelope for the attention of the defendant.

(b)The defendant is to be notified of the steps taken to serve the documents in (a) above by text message to his cellphone number referred to at paragraph [1](b)(ii) of the notice of application for substituted service. The text message must also advise the defendant that a copy of the documents can be obtained from the High Court and the solicitors for the plaintiffs and provide contact details for both.

(c)The documents are to be treated as served one working day after completion of the above steps.

[13]Costs on this application are reserved.

O G Paulsen Associate Judge

Solicitors:
Smyth & Co, Christchurch