Estate of Blackwell

[2020] NZHC 1951

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-36

[2020] NZHC 1951

IN THE MATTER

of an application for a Beddoe Order in respect of the Estate of ROBERT MORTIMER BLACKWELL, Deceased

BETWEEN

MEGAN LISA BARTLETT AND DAVID

JOSEPH EHLERS, as Executors and Trustees of the Estate of ROBERT MORTIMER BLACKWELL, Deceased

Applicants

Hearing:	On the papers
Counsel:	K J Jarvis for Applicants
Judgment:	5 August 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 5 August 2020 at 4.15pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 5 August 2020

RE ESTATE OF R M BLACKWELL EX PARTE BARTLETT [2020] NZHC 1951 [5 August 2020]

[1]        The applicants seek an order for substituted service in relation to Mr Donald Maurice Murdoch who is a beneficiary in the estate of the late Mr Blackwell.

[2]        Directions for service were made on 5 June 2020 requiring the beneficiaries of Mr Blackwell’s estate be served.  As  recorded  in  the  judgment  of  5 June 2020, Mr Blackwell left a modest estate with the assets being a little over $100,000.1 In considering this application, I take into account the desirability of minimising costs.

[3]        The application for substituted service is made pursuant to  r 6.8  of  the  High Court Rules 2016, which requires the applicants to have demonstrated that reasonable efforts have been undertaken to serve the proceedings on Mr Murdoch. An affidavit of a process server, Mr Bracegirdle, has been sworn which provides that on Tuesday 21 July 2020, Mr Bracegirdle drove to Mr Murdoch’s home and it seems Mr Murdoch was not at home at that time. Mr Bracegirdle says he left a letter addressed to Mr Murdoch at the address advising that the process server would return on 24 July 2020 to serve the documents. A copy of the documents to be served were left with the letter.

[4]        Mr  Bracegirdle  recounts  that  on  24  July  2020,  he  travelled  back  to   Mr Murdoch’s address and, again, Mr Murdoch was not home. Mr Bracegirdle notes on his second visit, the letter and the documents he had previously left were still present where he had left them.

[5]        Accordingly, the evidence is that two visits to Mr Murdoch’s home were made, both only a few days apart. I would not ordinarily consider this to meet the threshold for the making of an order for substituted service. It seems the plaintiffs have a cell phone number for Mr Murdoch and there is no suggestion that they have tried to contact him using that telephone number.

[6]        That said, each attempt at service will be diminishing the value in the estate. The methods sought for substituted service should bring the papers to Mr Murdoch’s attention.

1      Re Estate R M Blackwell [2020] NZHC 1238.

[7]As much out of pragmatism as anything, I am prepared to grant the application.

[8]Accordingly, the following orders are made:

(a)I direct that personal service of the following documents;

(i)Covering letter to Mr Murdoch;

(ii)Application without notice for permission to commence proceeding by originating application dated 20 May 2020;

(iii)Originating application on notice dated 20 May 2020;

(iv)Without notice application for directions as to service dated  20 May 2020;

(v)Memorandum of counsel for the applicants dated 20 May 2020;

(vi)Affidavit of Megan Lisa Bartlett sworn 20 May 2020;

(vii)Affidavit of Mark Julian Hosie sworn 18 May 2020;

(viii)Affidavit of Suzanne Ann Corson sworn 20 May 2020;

(ix)Affidavit of Lynley Jan Riwhi sworn 19 May 2020;

(x)Affidavit of Jocelyn Reece sworn 19 May 2020;

(xi)Judgment of Associate Judge Lester dated 5 June 2020;

(xii)      Notice of date of hearing – first call, dated 11 June 2020; (the Documents) on Donald Murdoch is dispensed with.

[9]        Service on Mr Murdoch will be deemed to be effected upon the completion of the following steps:

(a)the documents be  posted  to  Mr  Murdoch’s  Post  Office  Box  at  PO Box 486, Cromwell;

(b)the documents be posted to  Mr Murdoch’s  last  known address  at  16 Dover Street, Orepuki, Southland; and

(c)a text message be sent to Mr Murdoch’s last known cell phone number as set out in the application, advising him that the Documents have been left for him in the above places.

[10]      The Documents will be treated as served three working days after the completion of the above three steps.

[11]The Documents to be served are to show the updated first call date being

17 August 2020.

Associate Judge Lester

Solicitors:
Webb Farry, Dunedin