Wadsworth v Surch
[2021] NZHC 2144
•17 August 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-000181
[2021] NZHC 2144
BETWEEN DALE ANTHONY WADSWORTH and BRONWYN KAY ALEXANDER
Plaintiffs
AND
TROY ADAM SURCH
Defendant
AND
CORRINA JOANNE HOOPER
Second Defendant
Hearing: On the papers Counsel:
G J Ryan for Plaintiffs
Judgment:
17 August 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 17 August 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WADSWORTH v SURCH [2021] NZHC 2144 [17 August 2021]
Background and the application
[1] On 11 May 2021, the plaintiffs commenced this proceeding against the above- named defendant, Troy Adam Surch (Mr Surch) as first defendant and Corrina Joanne Hooper (Ms Hooper) as second defendant. In the statement of claim the plaintiffs sought to recover from Mr Surch and Ms Hooper, in their capacities as trustees of the Zurich Oak Trust, an amount of $444,000 alleged to have been advanced as a loan along with interest and costs (the loan).
[2] The proceeding was filed along with an application for summary judgment which was set down to be called before the Court on 24 June 2021. Prior to the hearing, the plaintiffs discontinued the claim against Ms Hooper. The application for summary judgment was adjourned to 19 August 2021 in anticipation of the plaintiffs applying for substituted service upon Mr Surch.
[3]The plaintiffs have now applied for:
(a)an order joining the plaintiff Dale Anthony Wadsworth as a first defendant along with Mr Surch in his capacity as a trustee of the Zurich Oak Trust;
(b)the addition of Mr Surch as a second defendant in his personal capacity; and
(c)an order for substituted service of the proceeding upon Mr Surch.
Application to add parties
[4] The applications in [3(a) and (b)] above are made pursuant to r 4.56 of the High Court Rules 2016. Rule 4.56 relevantly provides:
4.56Striking out and adding parties
(1)A judge may, at any stage of a proceeding, order that
---(a) the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or
(b) the name of a person be added as a plaintiff or defendant because
---(i)the person ought to have been joined; or
(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
(2)An order does not require an application and may be made on terms the court considers just.
…
[5] Anticipating orders being made joining further parties, the plaintiffs have filed a draft amended statement of claim. It contains three proposed causes of action as follows:
(a)the first cause of action against Mr Surch and Mr Wadsworth (as first defendants) seeks to recover the loan on the basis the plaintiffs advanced the loan to them as trustees of the Zurich Oak Trust;
(b)the second cause of action (pleaded in the alternative) alleges the loan monies were advanced pursuant to certain mistakes of fact and/or law and seeks to recover them; and
(c)the third cause of action is against Mr Surch alone and alleges that if the first defendants are not parties to the loan, then it comprises a contract between the plaintiffs and Mr Surch who is responsible for repayment.
[6] It will be apparent that all causes of action in the statement of claim and proposed amended statement of claim concern the same subject matter, namely a loan made by the plaintiffs to the trustees of the Zurich Oak Trust or Mr Surch.
[7] Counsel also acknowledges Mr Wadsworth should have been named as a defendant originally as he is a current trustee of the Zurich Oak Trust. The application to join him is intended to regularise the proceeding.
[8] The position adopted to the joinder of parties is a liberal one and plaintiffs seeking to join additional defendants are in the most favoured position. I am satisfied
the Court has jurisdiction to make the orders sought on the basis the presence of the added defendants before the Court is necessary to adjudicate on all questions which arise in the proceeding.
[9] As a matter of discretion, I can see no reason not to join the additional defendants. Mr Wadsworth is already a plaintiff and plainly consents to the order sought joining him as a defendant. Mr Surch is also presently a party (as first defendant) and as he has yet to be served with the proceedings there can be no prejudice to him.
Application for substituted service
[10]The plaintiffs apply for the following orders:
(a)that personal service of the documents listed in Schedule 1 to the application, be dispensed with in respect of Mr Surch;
(b)that service be deemed to be effected on Mr Surch (in all relevant capacities) three working days from completion of the following steps:
(i)the documents being emailed to Mr Surch;
(ii)the documents being posted to an address in Auckland where it is understood Mr Surch resides; and
(c)for costs on a 2B basis and disbursements, to be costs in the cause.
[11] Under r 6.8 of the High Court Rules, the Court can make an order dispensing with service of any document on a person or direct that a document will be treated as served once specified steps have been taken that are likely to bring the document to that person’s attention.
[12]Rule 6.8 relevantly 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
(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).
[13]The facts supporting the application are as follows:
(a)upon the issue of this proceeding the plaintiffs’ solicitors instructed process servers to serve Mr Surch;
(b)it is understood Mr Surch resides at an address in Ellerslie, Auckland;
(c)attempts have been made to serve Mr Surch at that address;
(d)the attempts to serve Mr Surch have been unsuccessful;
(e)the process server has spoken to the occupant of the property who has identified herself as Mr Surch’s fiancée and she is therefore likely to be in contact with him;
(f)Mr Surch’s fiancée has said Mr Surch lives in Christchurch and visits Auckland from time to time and that he would be returning to the property;
(g)Mr Surch’s fiancée has declined to provide any other address or contact details for Mr Surch;
(h)further attempts to serve Mr Surch were unsuccessful;
(i)the process server has left his contact details for Mr Surch but Mr Surch has not contacted him; and
(j)the plaintiffs’ solicitors have previously been in email contact with Mr Surch at the email address referred to in the notice of application.
[14] This application has been made on a without notice basis, which is appropriate. To require service of the application upon Mr Surch would be futile.
[15]The evidence satisfies me of the following:
(a)there is reason to believe that Mr Surch resides at the Ellerslie address;
(b)Mr Surch’s fiancée resides at that address and knows of his whereabouts;
(c)reasonable attempts have been made to serve Mr Surch, which have been unsuccessful;
(d)Mr Surch’s fiancée has not provided details that would allow him to be served;
(e)it can be reasonably inferred that Mr Surch is aware of the attempts to serve him and he does not wish to accept service; and
(f)it is likely Mr Surch will become aware of the proceedings if service is effected by sending the documents to his email address and by leaving them at the address occupied by his fiancée.
[16] In the circumstances, I consider the grounds for making an order for substituted service are made out. However, contrary to what is sought in the application I will require the documents be left for Mr Surch at the Ellerslie address rather than being posted to him. In that way there can be no dispute the documents arrived for Mr Surch at the property.
Result
[17]The orders I make are as follows:
(a)Dale Anthony Wadsworth is joined as a first defendant;
(b)Troy Adam Surch is joined as a second defendant;
(c)the plaintiffs are to file an amended statement of claim reflecting the joinder of additional defendants within seven days of the issue of this judgment;
(d)dispensing with personal service of the proceeding upon Troy Adam Surch;
(e)that service of the documents listed in Schedule 1 of the application for directions as to substituted service dated 12 August 2021 shall be deemed to be effected upon Mr Surch (in all relevant capacities) three working days from completion of the following steps:
(i)the said documents are to be emailed to Mr Surch at the email address set out at para 1.2.1 of the application; and
(ii)the documents are to be left for Mr Surch at the property set out at para 1.2.2 of the application.
(f)the hearing of the plaintiffs’ application for summary judgment scheduled for 19 August 2021 shall be adjourned to be heard at 11am on 16 September 2021;
(g)there shall be an order for costs on the application for substituted service on a 2B basis plus reasonable disbursements as costs in the cause; and
(h)I reserve leave to apply for further orders as required.
O G Paulsen Associate Judge
Solicitors:
White Fox & Jones, Christchurch
0
0
0