PTW Holdings Limited v Hovell

[2023] NZHC 2503

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1589

[2023] NZHC 2503

BETWEEN

PTW HOLDINGS LIMITED

Plaintiff

AND

TAMA HOVELL

Defendant

Hearing:	On the papers
Counsel:	D J Pine for Plaintiff
Judgment:	6 September 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 6 September 2023 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PTW HOLDINGS LTD v HOVELL [2023] NZHC 2503 [6 September 2023]

[1]                 The plaintiff has applied for summary judgment against the defendant alleging that he is unlawfully occupying a property owned by the plaintiff. It seeks an order that the defendant vacate the property, damages and costs.

[2]                 The application presently before me, however, is for orders dispensing with personal service of the proceeding on the defendant, and an order for substituted service to an email address known to be used by him.

[3]                 The application is made in reliance upon r 6.8 of the High Court Rules 2016. It has been made on a without notice basis which is, of course, entirely appropriate for such applications.1

[4]                 These parties have been involved in other proceedings. On previous occasions attempts at personal service of documents on the defendant have been unsuccessful. However, the defendant previously texted the plaintiff’s process server stating that the best way to get information to him was by email. Consistent with this, the defendant has had lengthy correspondence with the plaintiff’s counsel in relation to this proceeding by email.

[5]                 On 9 August 2023, the plaintiff’s counsel emailed the defendant notifying him that the proceeding had been filed and providing a link to a drop box folder containing the documents for service. Since then, there has been much correspondence with the defendant by email, but he has not confirmed receipt of service of the documents. After several requests, the plaintiff’s counsel advised the defendant a process server had been instructed to serve the documents upon him. The defendant responded on 22 August 2023 that the plaintiff’s process server would not find him and “I’ll take service from your client direct. He can text me to arrange a place and time to meet. I’ll have the papers for him also.”

[6]                 On 22 August 2023, a process server from Secure Collections & Investigations Limited attempted personal service on the defendant at both the property that is the subject of this proceeding and at [...] where it is understood he could be found. The defendant could not be found at the subject property. The process server reports that

1      High Court Rules 2016, r 7.23(2)(a)(i) and (v).

at 4.22 pm he went to […] and spoke to an elderly female occupant who stated the defendant was home. She went to get him and then returned and said he must have gone. When it was pointed out that the defendant’s vehicle had remained parked outside, she replied the property was like Grand Central Station with people coming and going. The process server left his card and asked that the defendant call him as soon as possible. In addition, he left a voice message on the telephone number that was understood to belong to the defendant requesting that he contact him. The defendant has not contacted the process server.

[7]                 In recent email correspondence between the plaintiff’s counsel and the defendant, the defendant has advised that he has not seen any documents, and that for reasons of cost and limited computer, printer and office facilities, it is not convenient for him to accept service by email.

[8]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).

[9]The evidence satisfies me that:

(a)the plaintiff has made reasonable efforts to serve the defendant with the proceeding and bring the documents relating to it to his attention;

(b)the defendant is aware of the proceeding and the nature of it;

(c)the defendant has regularly corresponded by email;

(d)the defendant is using the email address to which the plaintiff wishes to serve the documents;

(e)the defendant is either residing at, or is known to those residing at [...];

(f)further attempts at personal service are likely to be unsuccessful in light of the defendant’s advice that “Your server will not find me”;

(g)the defendant has the capacity to access documents if they are sent to him by email, but to avoid any risk that this may not be the case, the documents will come to his attention if they are also left for him at [...].

[10]             In these circumstances I am satisfied that the requirements of r 6.8 are met and it is appropriate that I dispense with personal service and order substituted service.

Result

[11]The orders that I make are as follows:

(a)Personal service of the following documents in this proceeding are dispensed with, namely:

(i)certified notice of proceeding;

(ii)interlocutory application for summary judgment;

(iii)statement of claim;

(iv)affidavit of Jietao Li in support of summary judgment;

(v)this minute;

(vi)      the sealed order on this application; (the documents);

(b)service of the documents is to be deemed to have been effected two working days following completion of the following:

(i)by sending the document by email to the defendant at his email address […] containing a link to a Cloud server holding the documents;

(ii)by delivering the documents to an adult occupant of the property at [...], or if no such occupant can be found or will accept the documents, by affixing them to the front door of the main residence.

(c)The costs of this application are reserved.

O G Paulsen Associate Judge

Solicitors:
Steindle Williams Legal, Auckland

Copy to

Mr T Hovell, Auckland