Nissan Financieal Services New Zealand Pty Limited v Constable

[2020] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-75

[2020] NZHC 2878

BETWEEN

NISSAN FINANCIAL SERVICES NEW ZEALAND PTY LIMITED
Plaintiff

AND

GRANT DAVID CONSTABLE

First Defendant

AND

JENNY MARIE CONSTABLE

Second Defendant

Hearing:	(Determined on the papers)
Counsel:	C T Jolliffe for the Plaintiff
Judgment:	3 November 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 3 November 2020 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 3 November 2020

NISSAN FINANCIAL SERVICES NEW ZEALAND PTY LIMITED v CONSTABLE [2020] NZHC 2878

[3 November 2020]

[1]        The plaintiff applies for an order for substituted service of the first and second defendants.

[2]        I am satisfied, having regard to the evidence filed, that reasonable efforts have been made to personally serve the first and second defendants with the plaintiff’s summary judgment proceedings and that the proceedings cannot be promptly served.

[3]        The plaintiff does not have a residential address for the defendants. The plaintiff has a physical work address for the first defendant and a work email address for him. A solicitor who had been approached by the defendants advised plaintiff’s counsel that he does not have instructions to accept service on behalf of the defendants. At the request of the solicitor for the plaintiff, that solicitor said he would try and obtain instructions. Follow-ups to that solicitor resulted in the solicitor advising that his firm would not be acting, and advice that he would speak to the first defendant to try to confirm representation and would provide an update. Nothing further has been forthcoming at the time this application was filed.

[4]        Further, the enquiry efforts by the plaintiff’s Christchurch process server suggest it would be unwise to attempt personal service on the first defendant at his place of work.

[5]        The plaintiff has confirmed it has working cell phone numbers for both defendants.

[6]        I am satisfied it is appropriate there be an order in terms of paras 1.1 and 1.2 of the interlocutory application dated 22 October 2020 for an order dispensing with personal service.

[7]        In addition to the text message proposed at paras 1.2(a) and (b) of the application, the text message shall advise the following:

The High Court has ordered that unless you, within five working days from the date of this text, make contact with Anthony Harper to arrange receipt of the Court documents, you will be deemed to have received those documents which seek judgment against you for $633,466 plus interest and costs.

[8]        In addition, a copy of this order and a copy of the proceedings are to be emailed to the work email address for the first defendant set out in para 7.5 of the affidavit of Sophie Maree Judson sworn 22 October 2020.

[9]        In addition, a copy of this order and a copy of the proceedings are to be posted to the first defendant at his work address marked “Private and Confidential”.

[10]      A copy of this order and a copy of the proceedings are to be  sent  to  Matthew Edwards, solicitor of Berry & Co, Queenstown, with a request that he bring this order and the proceedings to the attention of the first and second defendants.

[11]      The documents will be treated as served three working days after the completion of the above steps.

[12]Costs are reserved.

Associate Judge Lester

Solicitors:

Anthony Harper, Christchurch Berry & Co, Queenstown