Radics v Radics

[2023] NZHC 1337

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-600

[2023] NZHC 1337

BETWEEN

ELEANOR ROSE RADICS

Plaintiff

AND

DAMIEN LEE RADICS

Defendant

Hearing:	(On the papers)
Appearances:	D M Jackson for the Plaintiff
Judgment:	30 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

RADICS v RADICS [2023] NZHC 1337 [30 May 2023]

[1]                 Eleanor Radics is the grandmother of Damien Radics. Eleanor says that under pressure from Damien, she sold her property in Rangiora to him in 2020. Eleanor provided 100 per cent vendor finance to Damien and that loan is recorded in a formal loan agreement requiring Damien to make monthly payments over a 30-year term, interest free.

[2]                 Damien defaulted on the payments. Eleanor, in effect, says that Damien went off the rails having got into drugs, compounding his mental health issues. She describes him as having taken off to Australia and she has not seen him for some time.

[3]                 Prior to Damien going to Australia, the wider family managed to get him, in September 2021, to sign an agreement for sale and purchase to transfer the Rangiora property back to Eleanor. Eleanor remains living in the property under a life interest, which was part of her 2020 arrangement with Damien.

[4]                 Eleanor’s contract to purchase back her home is unconditional but has not settled with Damien who is apparently living in Sydney as a vagrant. Not surprisingly, this has meant Eleanor has been unable to serve her proceedings seeking specific performance of the 2021 contract.

[5]                 Eleanor’s original affidavit, sworn on 6 December 2022 in support of her application for summary judgment, sought that she be able to serve the proceedings at a Gmail address for Damien, given at para 13. There was also the suggestion that the papers should go to Damien’s mother, Mrs Lloyd. Mrs Lloyd has apparently got no means of communicating with Damien unless he initiates contact with her.

[6]                 Mr Jackson, counsel for the plaintiff, has applied pursuant to r 6.8(1)(c) of the High Court Rules 2016 (the Rules) for an order dispensing with service. Rule 6.8(1) provides that the Court can dispense with service subject to any conditions the Court thinks just to impose and give to the applicant leave to proceed as if the document had been served.

[7]                 A difficulty for the plaintiff here should she have sought substituted service, was to show the reason to believe service at the email address or on Mrs Lloyd was

likely to bring the documents to the attention of Damien.     Equally, insisting on personal service given Damien’s present lifestyle is impractical.

[8]                 I am satisfied that this is an appropriate case to dispense with service but on conditions which would mirror those which might be made in a substituted service application.

[9]                 Accordingly, there is an order pursuant to r 6.8(1)(c) dispensing with service of the pleadings in this proceeding on the defendant upon the condition that a copy of the pleadings, along with a copy of this judgment, is sent by email to the Gmail address given in the plaintiff’s affidavit sworn. The plaintiff is to ensure that the size of the email (or emails) is such that it will not be rejected by Gmail.

[10]             In addition, a copy of the proceedings and a copy of this judgment are to be served on Mrs Lloyd. If Mrs Lloyd will not accept service by email or by post then the documents are to be personally served on her.  I leave it to Mr Jackson to see if  a means of service on Mrs Lloyd short of personal service can be agreed. Mrs Lloyd is directed to bring the papers to Damien’s attention if she is able to do so.

[11]             There shall be leave to the plaintiff to proceed as if the documents had been served, three working days after the above conditions have been fulfilled.

[12]             I do not abridge time for the filing of papers in opposition to five working days as sought by Mr Jackson. I adjourn the call of the summary judgment application to 22 June 2023 at 11am and abridge time for any opposition to 19 June 2023. Eleanor is entitled to have her proceeding progress but given what I have been told about Damien, should he want to respond to the proceeding, three weeks is sufficient for him to do so.

Observation

[13]             Eleanor seeks specific performance of her agreement for sale and purchase, buying back the property from Damien. Mr Jackson is to reflect upon the inter-relationship between Eleanor’s obligation to pay the purchase price under her agreement for sale and purchase and the term loan agreement she entered with Damien

under which Damien was to pay to her the purchase price she lent him. The two obligations do not automatically cancel out.

[14]             It may be that Eleanor will need to cancel the term loan agreement and seek relief under s 43 of the Contract and Commercial Law Act 2007, but I leave that issue to Mr Jackson to consider.

Associate Judge Lester

Solicitors:
Brandts-Giesen McCormack Lawyers, Rangiora (for Plaintiff)

Copy to:
D M Jackson, Barrister, Christchurch (for Plaintiff)