Stalix Property Limited v Wu

[2022] NZHC 3163

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000241

[2022] NZHC 3163

BETWEEN

STALIX PROPERTY LIMITED and

STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED
Plaintiffs

AND

YI HENG WU

First Defendant

AND

XI CHEN

Second Defendant

AND

ZHONG XIU FAN

Third Defendant

AND

FANG CHUN WU

Fourth Defendant

Hearing:

On the papers

Counsel:

G K Riach for Plaintiffs

Yi Heng Wu (Henry Wu) self-represented for all Defendants

Judgment:

29 November 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 29 November 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

STALIX PROPERTY LTD v WU [2022] NZHC 3163 [29 November 2022]

[1]                 The plaintiffs, Stalix Property Ltd and Stress Free Chairs, Dining and Lounge Ltd, apply on a without notice basis for an order pursuant to r 6.8 High Court Rules 2016 that service on the second and fourth defendants of an Order for Possession made by this Court and sealed on 5 October 2022 be effected by:

(a)handing a copy of the Order to any adult person answering the door at 15 Blarney Place, Casebrook or, if nobody answers the door, by affixing a copy of the Order to the front door of that property;

(b)sending an electronic copy of the Order to the email address for service of the first and third defendants; and

(c)treating the Order as served on completion of both of the above modes of service.

[2]                 The background to the application is as follows. The plaintiffs filed proceedings against the defendants for possession of the Blarney Place property. They obtained an order for possession of the property pursuant to a judgment of Associate Judge Lester dated 5 August 2022. In that judgment the Judge noted there had been a lengthy history of proceedings leading to the property being sold to the plaintiffs pursuant to an order for sale made by the High Court, but the plaintiffs were not involved in that prior litigation and were arms-length purchasers of the property for value. The judgment notes that the first defendant, Mr Wu, appeared in person to oppose the plaintiffs’ application and the other defendants were present in Court during the hearing.

[3]                 Mr Wu subsequently filed an appeal from Associate Judge Lester’s judgment. He also applied for a stay, which was heard and dismissed by Associate Judge Lester on 12 August 2022. On 15 August 2022, the third defendant, Ms Fan, also applied for a stay of the judgment which was declined by Associate Judge Lester on 19 August 2022. Mr Wu also applied to the Court of Appeal for a stay, but the Court of Appeal dismissed that application. Mr Wu has applied to the Court of Appeal for recall of the

dismissal of his stay application and the Court of Appeal dismissed that application noting:1

In those circumstances, and having regard to the history of the proceedings summarised in our judgment, we are satisfied that the application for recall is an abuse of process. The respondents should not be required to respond to it, and the Court’s time should not be further occupied by it, to the detriment of other parties with matters awaiting determination by this Court. The application for recall should be declined.

[4]                 I understand that Mr Wu has since applied to the Supreme Court for leave to appeal the decision of the Court of Appeal dismissing his stay application.

[5]                 The application before me is supported by an affidavit of Mr Verdi van Beek, an experienced licensed private investigator. His evidence is that he was engaged by Harmans, the solicitors for the plaintiffs, to attempt service of the Order for Possession on the second and fourth defendants. The second and fourth defendants are the wife and father of Mr Wu, and they reside with him at the Blarney Place property.

[6]                 Mr van Beek went to the Blarney Place property on 23 November 2022 where he spoke to Mr Wu. Mr van Beek identified himself and asked to speak to the second and fourth defendants. He explained he was there to deliver an order of the Court.  Mr Wu said that the second and fourth defendants were not home but would be home at suppertime. Mr van Beek said he would return at 5.30 pm and Mr Wu agreed to that course.

[7]                 Mr van Beek returned to the Blarney Place property as arranged. Once more the door was answered by Mr Wu. Mr Wu said that the second and fourth defendants were not available for service. When asked if he meant they would not be available for service at any time, Mr Wu said “Yes” and that he would not allow them to be served. Mr van Beek then said, “So just to clarify, will you allow me to serve Ms Chen and Mr Fang Wu?” Mr Wu replied “No”. Mr van Beek clarified with Mr Wu again whether or not he would allow the second and fourth defendants to be served, and Mr Wu repeated that it would not be possible to serve them.

1      Wu v Stalix Property Ltd [2022] NZCA 549 at [8].

[8]                 Mr van Beek says he is satisfied it is not likely to be possible to effect personal service on the second and fourth defendants.

Rule 6.8

[9]                 This application has appropriately been made on a without notice basis. To require service of the application upon the second and fourth defendants would cause undue delay and would render this application futile.2

[10]Rule 6.8 provides:

6.8Substituted 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

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

(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).

[11]             As will be noted, r 6.8 requires that a person seeking substituted service of a document must show that reasonable efforts have been made to serve the document and either the person to be served knows of the existence of the document or prompt service cannot be effected. Further, the Court will have to be satisfied that the proposed method of substituted service would be likely to bring the document to the notice of the person to be served.

[12]The evidence that is before me satisfies me of the following:

(a)the second and fourth defendants are residing at the Blarney Place property;

(b)two attempts have been made to serve the Order for Possession upon them at that address;

(c)Mr Wu has made it clear to Mr van Beek that he will not allow service to occur on the second and fourth defendants;

(d)the second and fourth defendants are relatives of Mr Wu and he has the ability to obstruct efforts to serve them;

(e)the second and fourth defendants are aware of the orders that have been made and are also almost certainly aware of the nature of the document that the plaintiffs wish to serve upon them;

(f)that further attempts to effect personal service on the second and fourth defendants are unlikely to be successful; and

(g)that effecting substituted service on the second and fourth defendants in the manner sought is likely to bring the Order for Possession to their notice.

Result

[13]The orders I make are as follows:

(a)Personal service of the Order for Possession sealed on 5 October 2022 upon the second and fourth defendants is dispensed with.

(b)Substituted service of the Order for Possession on the second and fourth defendants shall be effected by:

(i)handing a copy of the Order for Possession (along with the sealed order for substituted service made on this application) to any adult person answering the door at 15 Blarney Street, Casebrook or, if nobody answers the door, by affixing those documents to the front door of that property; and

(ii)sending an electronic copy of the Order for Possession (and the sealed order for substituted service made on this application) by electronic mail to the address for service of the first and third defendants, being the email address referred to in para 1(i)(b) of the notice of application.

(c)That the Order for Possession shall be treated as having been served upon the second and fourth defendants upon completion of the steps in

(b) above.

(d)The applicants have applied for an award of indemnity costs against Mr Wu in making this application on the basis that he has deliberately obstructed efforts to serve the second and fourth defendants. I am not prepared to make such an order until Mr Wu has had an opportunity to be heard in relation to it. If the plaintiffs wish to pursue that application, they are to serve Mr Wu with the documents filed in support of the application for substituted service and he shall have seven days following service of those documents to file and serve any submissions

in opposition to the costs application. The plaintiffs will have seven days to reply. I will deal with the matter on the papers.

O G Paulsen Associate Judge

Solicitors:
Harmans, Christchurch

Copy to:
Mr Henry Wu (for all Defendants)