Bujak v Monasterio and Moya

[2009] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND

CA544/2009
CA545/2009
[2009] NZCA 516

BETWEENSLAWOMIR RYSZARD BUJAK

Appellant

ANDMARCOS ERIK MONASTERIO

First Respondent

ANDMARIA JOSE MARCOS MOYA

Second Respondent

Hearing:20 October 2009

Court:William Young  P, Glazebrook and Robertson JJ

Counsel:F C Deliu for Appellant

G E Slevin for Respondents

Judgment:27 October 2009 at 4 pm

JUDGMENT OF THE COURT

A           An extension of time for appealing is declined.

B           Application for a stay declined.

CMr Bujak is to pay costs on a standard band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]        Mr Bujak and his wife (Ms Danuta Zalwowska-Spisak) are defendants, and the respondents are the plaintiffs, in civil proceedings in the High Court at Christchurch.  Both Mr Bujak and Ms Zalwowska-Spisak are Polish.  Mr Bujak is subject to an extradition order which, if executed, will require him to return to Poland.  Ms Zalwowska-Spisak is, apparently, currently living in Poland along with a young child of the marriage.

[2]        On 4 August 2009 French J:

(a)Made an order for substituted service, under which service on Ms Zalwowska-Spisak may be effected by, inter alia, service on Mr Bujak.

(b)Declined to vary an existing freezing order.

(c)Adjourned for further consideration an application for orders as to disclosure.

[3]        On 21 August 2009, French J made further orders in which she required:

(a)Mr Bujak to file and serve an affidavit providing specified information as to particular financial transactions.

(b)Ms Zalwowska-Spisak by her attorney, Mr Bujak, to file and serve an affidavit disclosing other specified financial information.

[4]        Mr Bujak has appealed against the judgments of 4 and 21 August 2009.  He was a day late in relation to the judgment of 4 August 2009 and thus requires an extension of time (which is the first of the applications which is before us).  He also sought a stay (the second application) and, as well, leave to adduce new evidence on the appeals (the third application).  This new evidence relates to the power of attorney which Ms Zalwowska-Spisak executed in favour of Mr Bujak and which was material to the order for substituted service and to the disclosure order made against Ms Zalwowska-Spisak.  The evidence is that this power of attorney was revoked on 13 October 2009.  The respondents are content for that evidence to be before us (which thus disposes of the third application).

[5]        Mr Bujak is not challenging the decision as to the freezing order or the requirement that he disclose financial information and the respondents no longer seek to uphold the disclosure order in relation to Ms Zalwowska-Spisak; this given her revocation of the power of attorney.  So all that is in issue substantively between the parties is a challenge by Mr Bujak to the order for substituted service in relation to his wife.

[6]        If we thought that Mr Bujak had an arguable basis for challenging that order on appeal, we would have extended time for his appeal. 

[7]        In the High Court both Fogarty J (in relation to an earlier order for substituted service which he set aside) and French J have acted on the basis that Mr Bujak is entitled to be heard as to substituted service on Ms Zalwowska-Spisak, albeit that neither Judge indicated why.  The underlying premise may have been associated with him being the donee of the power of attorney, but if so, this premise was unarticulated.  Such a premise would, in any event, not have been entirely logical because if Mr Bujak was representing his wife in the proceedings, that might be thought to be evidence that he had authority to do so and thus, in practical terms, to have obviated any need for substituted service (see r 61.16 of the High Court Rules).

[8]        The reality is that the mechanisms by which the respondents claim to have served the proceedings on Ms Zalwowska-Spisak are of no legal or practical concern to Mr Bujak.  He had no personal right to be heard as to substituted service.  As well, and for the avoidance of any doubt, we record that, with the revocation of the power of attorney, he now undoubtedly has no right to prosecute an appeal on behalf of Ms Zalwowska-Spisak.  He therefore has no status to challenge the order for substituted service.

[9]        In any event, it is now perfectly clear from correspondence from Mr Brian Palliser, a Christchurch solicitor, that Ms Zalwowska-Spisak is aware of the proceedings.  In this respect the order for substituted service has achieved its purpose.  In that context, and leaving aside Mr Bujak’s lack of status, it is inconceivable that this Court, on appeal, would set aside the order for substituted service.

[10]      We record that, after the hearing, counsel for Mr Bujak sought to adduce further evidence which suggests that Mr Palliser is now having difficulty making or maintaining email contact with Ms Zalwowska-Spisak and that it is uncertain what, if any, documents associated with the claim have been received by her.  Unexplained in the material put to us on behalf of Mr Bujak is how Ms Zalwowska-Spisak came to cancel the power of attorney.  The timing in relation to this appeal suggests that she was aware of what has been happening in New Zealand.  We are not much impressed by the fact that she appears to be able to (and does) take action in relation to the case when it suits her but is otherwise out of communication.  In any event, the proposed further evidence does not detract from the conclusions which we have reached.

[11]      Accordingly we decline the applications to extend time for appealing and a stay.  Mr Bujak is to pay the respondents costs on a standard, band A, basis and usual disbursements.

Solicitors:

A McClymont, Auckland for Appellant

Wynn Williams & Co, Christchurch for Respondents