Rennie v Smith HC Christchurch CIV 2010-409-2428

[2010] NZHC 2238

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-002428

BETWEEN  WILLIAM GORDON RENNIE Plaintiff

ANDRICHARD GEORGE SMITH Defendant

Hearing:         13 December 2010

Appearances: S Caradus for Plaintiff

No appearance for Defendant (but letter received by the Registrar) Judgment:  13 December 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to Substituted Service

[1]      The plaintiff seeks judgment on the balance of money owing under a deed of compromise of claim.

Substituted service

[2]      The affidavit of service filed for the plaintiff indicates that the documents in the proceeding were provided to the defendant by email.   This is not one of the methods of service provided by r 6.1(1) High Court Rules.  Accordingly, because the documents were not supplied as provided for by the Rules, service had to be effected by the method and at the place the Court directs: see r 6.1(2).

[3]      The circumstances of the case are unusual.   The process server involved identified that the defendant had moved from his previous address but was unable to

locate his current address.  The defendant’s former solicitors were not able to obtain

RENNIE V SMITH HC CHCH CIV-2010-409-002428  13 December 2010

instructions to accept service, but did put the plaintiff’s process server in contact with the defendant via email.

[4]      An email correspondence then ensued in which the defendant emphasised that he did not want to pay a lawyer to accept service on his behalf.  He indicated that he strongly wished to avoid additional costs.  He recorded that he had given an undertaking that when he had income he would put in place a payment plan to deal with this debt amongst others which had arisen from the collapse of his business.  In these circumstances, the process server forwarded all the documents to the defendant at his email address, as the defendant requested.  I am satisfied that the defendant has received emailed copies of the documents by that method.  Indeed, the Registrar has today received a letter from the defendant confirming just that.

[5]      The  solicitors  for  the  plaintiff  ought  to  have  made  an  application  for substituted service either before or at the time they had the documents forwarded to the defendant.  On the other hand, I am conscious that the defendant’s frank position to the plaintiff’s process server indicates that he has been doing all he can to avoid the addition of unnecessary cost.  Further complexity to this proceeding would have added to that cost.

[6]      In the circumstances I am satisfied in terms of r 6.8 that reasonable efforts have been made to serve the proceedings and that the proceedings have come to the knowledge of the defendant.

[7]      I direct that instead of service, the steps taken to bring the document to the notice of the defendant (namely by emailing them to him) shall be the steps taken for the purposes of substituted service and that the emailed documents shall be treated as having been served on the defendant on 8 December 2010, being the date on which he emailed his confirmation to the process server that he had received the documents and that he accepted service had been satisfied.

[8]      I enlarge the proceeding to the list at Christchurch at 11.45 a.m., 24 January

2011 to provide the defendant the prescribed period for response to the proceeding should he wish to file a defence or enter an appearance.

[9]      I direct the plaintiff’s solicitors to provide a copy of this judgment to the

defendant by email promptly after this hearing.

Associate Judge Osborne