Ford v Strangwick

[2018] NZHC 2630

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-557

[2018] NZHC 2630

BETWEEN

PETER LESLIE FORD

Plaintiff

AND

ALYSSA AILENE STRANGWICK and TRAVIS BRADLEY STRANGWICK

Defendants

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	9 October 2018

JUDGMENT OF CLARK J

This judgment was delivered by me on 9 October 2018 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:
The plaintiff

FORD v STRANGWICK [2018] NZHC 2630 [9 October 2018]

Introduction

[1]    Mr Ford is a self-represented plaintiff who has issued proceedings alleging unconscionable bargain. He seeks a declaration that a property at 36 Akatea Road, Lower Hutt, is held by the defendants pursuant to a constructive trust in favour of  Mr Ford. The proceeding was filed on 27 July 2018. The defendants, Alyssa Strangwick and Travis Strangwick, have not been served.

[2]    Mr Ford seeks an order for substituted service. He says attempts to serve on the defendants a notice of proceeding and statement of claim have failed and he seeks to effect substituted service by way of email.

Rules governing substituted service

[3]    Substituted service may be ordered where the court is satisfied reasonable efforts have been made to serve a document and either the document has come to the attention of the person to be served or it cannot be promptly served.1 In those circumstances, the court may direct steps be taken that are likely to bring the document to the notice of the person to be served and that the document be treated as served on the happening of a specified event or on the expiry of a specified time.2

[4]    In Re Franck ex parte Asteron Life Ltd, Clifford J permitted service of a bankruptcy notice by email and upon the applicant for substituted service receiving a read receipt.3 Having reviewed the authorities Clifford J declared it was no longer correct to say the court is unlikely to grant leave to effect service of court documents by email alone.4 His Honour concluded service by email was appropriate as it seemed clear the judgment debtor was overseas and there was evidence he had previously replied to emails from the email address at which he was to be served.5

1      High Court Rules 2016, r 6.8.

2      Rule 6.8(1)(a).

3      Re Franck ex parte Asteron Life Ltd (2009) 19 PRNZ 446 (HC).

4 At [10].

5      At [11]-[12].

Mr Ford’s application

[5]    Mr Ford has deposed in his affidavit to the circumstances in which it is said the Strangwicks were unable to be served.  The affidavit exhibits emails between   Mr Ford’s former counsel, Mr Bell, and a private investigator from AD&A Services in Australia.

(a)It is clear service on both defendants was attempted at an address in Torquay, Victoria, given as both the residential address for the couple and as the corporate address for the company, Angry Chicken Media, of which both defendants are directors and which was said to be operated from the defendants’ residence.

(b)In an email to AD&A Mr Bell advised that an investigator approached the Torquay address and confirmed the residents were not the defendants. There is no evidence Mr Bell’s investigator sought further information from the occupants, such as a forwarding address for the Strangwicks, or agents’ details or that he or she contacted neighbours. AD&A raised these possibilities with Mr Bell.

(c)Ten days later Mr Bell advised AD&A his client had received information the defendants may be located at an address in Geelong, Victoria. AD&A replied to the effect it had not “come up with an address” and asked whether Mr Bell wished AD&A to instruct its Melbourne agent to attempt service at the Geelong address. Mr Bell confirmed that an attempt should be made.

(d)The last email exhibited to Mr Ford’s affidavit is dated 11 September 2018. It is from Mr Bell to AD&A and asks for progress.

[6]    In his affidavit Mr Ford deposes to AD&A failing to locate the defendants “as detailed in emails attached”. The difficulty for Mr Ford is that there is no evidence to support his contention there has been a failure to locate the defendants. I am unable to be satisfied on the basis of the evidence provided in support of Mr Ford’s application that reasonable efforts have been made to serve the documents on the defendants. It

is necessary for Mr Ford to provide evidence of the attempts to serve the documents on the defendants at the Geelong address provided by Mr Bell to AD&A.

[7]    In his application (although not his affidavit) Mr Ford refers to the Strangwicks’ business as having a presence on the internet. The company’s website provides a method of email contact and Mr Ford states, in his application, he has previously made contact via the following three email addresses:

·[e-mail]

·[e-mail]

·[e-mail]

[8]    There is evidence in the disclosure bundle that contact has previously been made with Travis Strangwick, one of the defendants, by email at his above address. There is no evidence, however, of contact with Alyssa Strangwick at her above email account. The High Court Rules expressly provide that service on one spouse, or partner, is not to be treated as service on the other unless the court so orders.6 There is no sufficient basis before me for so ordering.

[9]    It is necessary for Mr Ford to file evidence as to his previous contact with Alyssa Strangwick at her email address, or other evidence to provide a proper basis upon which the court may order that service on one of the defendants may be treated as service on the other. As the application, and supporting evidence stands, I cannot be satisfied that documents emailed to Alyssa Strangwick’s email address are likely to bring the documents to Ms Strangwick’s notice.7

Result

[10]   At this time, the application for substituted service is declined. Mr Ford may apply further if he is able to remedy the evidential defects which I have identified.

Karen Clark J

6      High Court Rules, r 6.4(2).

7      Rule 6.8(1)(a)(i).