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Exportrade Corporation v Irie Blue New Zealand Limited [2013] NZCA 675 (19 December 2013)

Last Updated: 26 December 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 First Respondent
AND
 Second Respondent
AND
 Third Respondent
Hearing:
14 November 2013
Court:
Ellen France, White and Heath JJ
Counsel:
G J Thwaite for Appellant H Fulton for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal is allowed.
  2. Order that the High Court has jurisdiction over the third respondent in respect of the appellant’s proceeding in New Zealand.
  1. The first and third respondents are to pay costs to the appellant for a standard appeal on a band A basis together with usual disbursements.
  1. Any costs orders following the High Court judgment [2012] NZHC 2870 are set aside. Costs are to be reconsidered in that Court in light of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)


Table of Contents


Para No
Introduction [1]
Substituted service on Mr Gribble [5]

High Court decision [6]

Substituted service [7]

Service out of New Zealand [9]

Can the Court order substituted service on a defendant not

present in New Zealand when the proceeding was commenced? [13]
Jurisdiction in respect of Mr Gribble [21]
The appropriate forum [33]

Barbados the appropriate forum? [44]

Special circumstances why trial in New Zealand? [53]
Result [58]
Postscript [62]

Introduction

[1] The appellant, Exportrade Corp (Exportrade), a company incorporated in Florida, appeals against the decision of Toogood J in the High Court at Auckland granting a stay of its proceeding against the respondents on the grounds that Toogood J erred in deciding that:[1]
[2] The issues were determined by Toogood J in the context of a 2008 proceeding in New Zealand by Exportrade claiming US$288,718.50, interest and costs based originally on three causes of action, but subsequently in an amended statement of claim on five, namely: enforcement of a Florida judgment (against all respondents); breach of contract (against all respondents); acknowledgment of debt (against Mr Gribble alone); negligence for breach of the Barbados Companies Act (against Mr and Mrs Gribble); and breach of statutory duty under the Barbados Companies Act (against Mr and Mrs Gribble).
[3] Exportrade’s proceeding has been the subject of extensive procedural steps and unfortunate delays.[2] The relevant procedural steps and decisions of the High Court are summarised by Toogood J in his decision.[3] For present purposes, it is sufficient for us to note that:
[4] While both counsel made submissions about the jurisdiction of the High Court to deal with the issues in the context of two separate protests to jurisdiction, both accepted that the principal issues for determination by this Court relate to Toogood J’s decisions on the invalidity of the order for substituted service on Mr Gribble (and consequent lack of jurisdiction in respect of Mr Gribble) and the appropriateness of the courts of Barbados as the forum for the trial. We therefore address these two issues.

Substituted service on Mr Gribble

[5] For Exportrade, Mr Thwaite submits that Toogood J erred in relying on the decision of this Court in Von Wyl v Engeler[6] and that the substituted service on Mr Gribble was valid. For Mr Gribble, Mr Fulton supports the decision of Toogood J.

High Court decision

[6] Toogood J found that, although Mr Gribble visited New Zealand from time to time, it was more likely than not that he was not in New Zealand at the time the proceeding was commenced. Toogood J relied on this Court’s decision in Von Wyl v Engeler for the propositions that there was no jurisdiction for the High Court to

make an order for substituted service on a defendant who was not present in New Zealand when the proceeding was commenced and an order made in those circumstances was a nullity.[7] In light of his factual findings, the substituted service was accordingly a nullity.

Substituted service

[7] Substituted service is provided for in r 6.8 of the current High Court Rules 2008:

6.8 Substituted service

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—

(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.

[8] Under the High Court Rules 1985, r 222 provided that the ordinary rules for service in New Zealand (including r 211, which provided for substituted service) were to apply to service out of New Zealand. In the present case the order for substituted service was made on 24 September 2009 under the 2008 Rules, which came into force on 1 February 2009.[8] There is no provision equivalent to r 222 in the new Rules.

Service out of New Zealand

[9] Generally speaking, substituted service within a jurisdiction cannot be made against a person outside the jurisdiction.[9] This follows from the principle that the jurisdiction of domestic courts is essentially territorial in nature. Where the legislature permits service of proceedings in overseas jurisdictions, it is an exception to the principle of territoriality.[10] In that case, where there is a power of service outside the jurisdiction, courts have ordered substituted service in appropriate cases.[11]
[10] Rules 6.27 and 6.28 of the High Court Rules 2008 provide for service out of the jurisdiction where:
[11] Rule 6.27 provides for “without leave” service of an “originating document” overseas where at least one of a number of jurisdictional gateways in r 6.27(2) is engaged:

6.27 When allowed without leave

(1) This rule applies to a document that initiates a civil proceeding, or is a notice issued under subpart 4 of Part 4 (third, fourth and subsequent parties), which under these rules is required to be served but cannot be served in New Zealand under these rules (an originating document).

(2) An originating document may be served out of New Zealand without leave in the following cases:

[sub-rules (a)–(m)]

...

[12] A court may grant an application to serve proceedings out of New Zealand under r 6.28(5) where:

(b) there is a serious issue to be tried on the merits; and

(c) New Zealand is the appropriate forum for the trial; and

(d) any other relevant circumstances support an assumption of jurisdiction.

Can the Court order substituted service on a defendant not present in New Zealand when the proceeding was commenced?

[13] We do not agree with Toogood J’s decision that there was no jurisdiction for the High Court to make an order for substituted service on a defendant who is not present in New Zealand when the proceeding is commenced. There is no reason in principle why substituted service cannot be ordered in respect of an overseas defendant.[12] A plaintiff may run a risk in doing so, especially in respect of enforcement of any judgment subsequently obtained, but that does not prevent a plaintiff from proceeding in this way. England’s current Civil Procedure Rules 1998, like the New Zealand Rules, contain no specific provision for substituted service on defendants outside the jurisdiction. Substituted service has, however, been held to be available against a foreign defendant under CPR r 6.15, provided the case is otherwise one suitable for service outside the jurisdiction and there is good reason to allow it.[13]
[14] It is well established, however, that leave to serve an originating document out of New Zealand, if leave is required under r 6.28, should still be obtained before seeking an order for substituted service.[14] If leave is not required, the application for substituted service should, like a notice of proceeding served under r 6.27, typically specify the limb or limbs of r 6.27(2) which the plaintiff considers applicable, and the factual background which the plaintiff considers applies.
[15] Von Wyl v Engeler,[15] relied on by Toogood J, concerned the different issue of whether a New Zealand court could enforce an overseas judgment against a defendant who had not submitted to the jurisdiction of the overseas court.[16] In Von Wyl the plaintiff was seeking to enforce against the defendant in New Zealand a judgment obtained in Switzerland when the defendant, who had already emigrated to New Zealand, was not served with the Swiss proceeding and was resident here when judgment was entered against him in Switzerland. The issue was whether in these circumstances the Swiss court had jurisdiction, as determined by the common law rules of conflicts of laws.[17] This Court held that the Swiss judgment could not be enforced in New Zealand because, applying common law conflict of laws principles, the Swiss court had no jurisdiction over the defendant who was not in Switzerland and had not submitted to the jurisdiction of the Swiss court.
[16] When delivering the judgment of this Court in Von Wyl, Richardson P said:[18]

... it seems there is no jurisdiction to order substituted service within the jurisdiction on a defendant who was outside the jurisdiction when the proceeding was issued.

It is clear from the context that Richardson P was referring to the position in Switzerland and the general common law principle of territorial jurisdiction and not to the position under the New Zealand High Court Rules that applied at the time.[19] Contrary to Toogood J’s suggestion,[20] Richardson P did not say that there was no jurisdiction to order substituted service within New Zealand on a defendant who was outside the jurisdiction when the proceeding was issued.

[17] The decision in Von Wyl is therefore not authority for the further proposition that New Zealand courts have no jurisdiction to order substituted service where the defendant is outside New Zealand. Nor was Von Wyl dealing with the question whether a proceeding could be served without leave under r 6.27. At the same time, of course, a judgment obtained in New Zealand against an overseas defendant in respect of whom substituted service had to be ordered may be unenforceable overseas under the conflict of laws principles applied by the overseas courts.
[18] The question of compliance with the particular sub-rules of r 6.27(2) was not discussed in any detail by Toogood J in relation to Mr Gribble. His discussion centred principally on the question of service on Mrs Gribble. Toogood J appears to have considered that r 6.27 was not available in any event based on his conclusion as to substituted service.
[19] We consider either r 6.27 or r 6.28 should be satisfied for an order for substituted service to be granted. We are confirmed in this view by the requirement in r 6.8 that, where substituted service is ordered, service must have been possible “by a method permitted or required under these rules”.
[20] Care must be taken that r 6.8 is not used as an alternative to rr 6.28 and 6.29. Accordingly, courts should be satisfied that reasonable efforts have been made to effect service. In the present case reasonable efforts had been made to serve Mr Gribble in Barbados.

Jurisdiction in respect of Mr Gribble

[21] It is common ground that the appellant did not apply for leave under r 6.28 prior to seeking an order for substituted service. As Toogood J noted in relation to Mrs Gribble, where there is a protest to jurisdiction following service without notice, a proceeding must be dismissed unless the plaintiff can show either:
[22] Mr Thwaite relies on r 6.27 as authorising the service of the present proceedings outside New Zealand without leave, particularly on r 6.27(2)(b), (2)(c), (2)(g) and (2)(h), which provide for service without leave in the following situations:

(b) when a contract sought to be enforced or rescinded, dissolved, annulled, cancelled, otherwise affected or interpreted in any proceeding, or for the breach of which damages or other relief is demanded in the proceeding—

(i) was made or entered into in New Zealand; or

(ii) was made by or through an agent trading or residing within New Zealand; or

(iii) was to be wholly or in part performed in New Zealand; or

(iv) was by its terms or by implication to be governed by New Zealand law:

...

(c) when there has been a breach in New Zealand of any contract, wherever made:

...

(g) when any relief is sought against any person domiciled or ordinarily resident in New Zealand:

(h) when any person out of the jurisdiction is—

(i) a necessary or proper party to proceedings properly brought against another defendant served or to be served (whether within New Zealand or outside New Zealand under any other provision of these rules), and there is a real issue between the plaintiff and that defendant that the court ought to try; or

(ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by proceedings in the court:

[23] The standard of a “good arguable case” of compliance with r 6.27(2) is a distinct test, separate from any question of the substantive merits of a claim. In the case of some categories in r 6.27(2) a conclusion at the first stage of the inquiry may substantially answer the question of the merits of the claim.[21]
[24] Mr Thwaite submits that there is jurisdiction in terms of r 6.29 because:
[25] The r 6.27(2)(g) gateway seems most clearly satisfied. As Mr Thwaite submitted, the Domicile Act 1976 provides that a person’s domicile of origin (birth) is retained until a new domicile is acquired by proof of presence in another county and intention to live in that country indefinitely.[22] Mr Gribble is New Zealand-born and has not submitted evidence that he intends to live permanently in another country.
[26] It seems that r 6.27(2)(h) is also satisfied. Irie Blue was validly served in New Zealand. At least where the other defendant validly served is in New Zealand (and accordingly no question of protest to jurisdiction can arise) we are satisfied that simultaneous service of both defendants satisfies the provision. The scope of r 6.27(2) is intentionally broad, as r 6.27(2)(g) demonstrates. In terms of r 6.27(2)(h)(ii) Mr Gribble is said to be a guarantor of Irie Blue’s obligations.
[27] We are less convinced that provisions 6.27(2)(b) and (c) are met in the absence of any developed submissions concerning when and where the contract was formed or breached or where Mr Gribble was at those times. Mr Thwaite referred to New Zealand Companies Office statements filed by Mr Gribble in respect of another company of which he was a director in the context of ss 214 and 377 of the Companies Act. The statements, falsification of which is an offence,[23] stated Mr Gribble resided at the New Zealand address where substituted service was made. They do not show, however, where Mr Gribble was on any particular day.
[28] For the reasons considered below in relation to Toogood J’s decision to stay the proceedings against the respondents,[24] we consider in any event that the criteria in r 6.28(5)(b)–(d) are met in respect of this proceeding. We note in terms of r 6.28(5)(b) that, as Toogood J said, there was no suggestion Exportrade’s substantive claim lacked merit. It was not submitted before us that if we concluded that New Zealand was the appropriate forum for the proceeding against Irie Blue that the appropriate forum for the appellant to sue Mr Gribble would nonetheless be Barbados.
[29] Mr Thwaite submits that the present case is also one in which, if necessary, this Court should excuse the failure to seek leave. We agree with Mr Thwaite that, contrary to Toogood J’s conclusion, the High Court order for substituted service made on 24 September 2009 was not in any event, a nullity. It was at most an irregularity and remained in force until set aside under r 1.5 of the High Court Rules. Rule 1.5 reflects the well-established principle that an order of a court of unlimited jurisdiction such as the High Court remains in force unless and until it is set aside by a court of competent jurisdiction. [25]
[30] Courts have a power to retroactively remedy such an irregularity under r 1.5 of the High Court Rules. Under the English regime of overseas service only by leave, it has been held that retrospective leave will only be granted in special circumstances.[26] In New Zealand, however, failure to make a prospective application for leave is a less serious omission, as in many cases no leave is required. Rule 6.29(1)(b) of the Rules now sets out a test for retrospective grant of leave. The plaintiff must show that:

(i) leave would have been granted; and

(ii) it is in the interests of justice that the failure to apply for leave should be excused.

[31] The test for grant of retrospective leave is substantially the same as that for a court considering r 6.28(5)(b)–(d) in assuming jurisdiction under r 6.29(1)(a). Rule 6.29(1)(b) provides, however, for an additional requirement. Where service without leave is not possible, a “real and substantial connection” with New Zealand is required for grant of leave under r 6.28(5)(a).[27] Toogood J held, in relation to Mrs Gribble, that no real and substantial connection exited in the present case.[28] For r 6.28 to be met, this has to have been the case on 24 September 2009. We are not convinced that, in the event we are wrong concerning the application of r 6.27, that a “real and substantial connection” existed for reasons which we discuss below.[29]
[32] Accordingly, Toogood J erred in finding that the High Court had no jurisdiction to order substituted service of the proceeding on the third respondent. An order for substituted service on a defendant not present in New Zealand is valid where, as here, a jurisdictional gateway in r 6.27(2) is met. Exportrade’s application to set aside the protest to jurisdiction should have been granted, in effect, affirming this Court’s jurisdiction to adjudicate on the appellant’s remaining claims.

The appropriate forum

[33] There is no dispute that Toogood J was right to consider that in a case such as this when a defendant has been validly served in New Zealand, as was the case with Irie Blue (and, in the event he erred as to jurisdiction, the other defendants), but the defendant does not consider that New Zealand is the appropriate forum, the appropriate course is for the defendant to apply for a stay or dismissal under r 15.1 of the High Court Rules.
[34] The relevant High Court Rules are r 6.29(3) and r 15.1 which provide:

6.29 Court’s discretion whether to assume jurisdiction

...

(3) When service of process has been validly effected within New Zealand, but New Zealand is not the appropriate forum for trial of the action, the defendant may apply for a stay, or for a dismissal of the proceeding under rule 15.1.

15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4) This rule does not affect the court’s inherent jurisdiction.

[35] Although in this case there is no formal application for a stay under r 15.1, we agree with Toogood J that it was appropriate for him to proceed to consider the issue as if Irie Blue and Mr Gribble had made one.[30] Mr Thwaite accepts that it was appropriate for Toogood J to do so. This approach is consistent with the objective of the High Court Rules which is to secure the just, speedy, and inexpensive determination of proceedings and interlocutory applications.[31]
[36] Toogood J concluded that New Zealand was not the appropriate forum for the following reasons:

[67] It is not asserted in this case that the relevant contract or contracts were made in New Zealand or through a New Zealand agent. The supply of clothing took place in or between the USA and Barbados, and there is no allegation or evidence that the alleged arrangements between the parties specified that New Zealand law would govern them. It is not asserted that any breach occurred in New Zealand. Nothing in the material before the Court suggests that any relevant witness currently resides in New Zealand. It follows that r 6.27 does not assist the plaintiff.

...

Forum non conveniens

[77] Even if I am wrong about that, there remains the defendants’ claim that New Zealand is forum non conveniens. The argument applies to all of the remaining causes of action. Counsel disagreed as to where the onus lay and it may be that the onus is different under r 6.28(5)(c) when a plaintiff is seeking to persuade the Court to assume jurisdiction under r 6.29(1) from the onus which usually rests on a defendant under r 15.1. But on either basis, and for the reasons discussed above at [67], I am clearly of the opinion that Barbados (if not Florida) is the more convenient forum for resolving the dispute. That is the jurisdiction in which the recipient of the goods involved in the dispute is alleged to have carried on business. The Supreme Court of Barbados can be expected to apply conventional common law principles to the contract dispute.

[78] The pleadings disclose no New Zealand connection between the alleged transactions giving rise to the claim and the defendants. The only connections with this country are that [Irie Blue] is registered here and that that [Mr Gribble] may be in New Zealand from time to time. In the circumstances, that is not enough to make the High Court of New Zealand the appropriate forum.

[37] Counsel disagree on the issues of burden of proof, the identification and application of the relevant principles in this case, and the approach which this Court should adopt on appeal. At the same time they do agree that when the issue of appropriate forum arises in the context of the exercise of the High Court’s discretion to assume jurisdiction over foreign parties, the relevant principles and factors are correctly identified by this Court in Wing Hung Printing Co v Saito Offshore Pty Ltd.[32]
[38] The starting point is to recognise, however, that in this case the issue of the appropriate forum was being considered not in the context of whether the High Court should assume jurisdiction over foreign parties as in Wing Hung, but in the different context of whether the High Court should have stayed a proceeding relating to a party, Irie Blue, which has been validly served. The substantive factors to be considered will include those under r 6.28(5)(b)–(d). In this context, as this Court has previously held,[33] the leading decision is that of the House of Lords in Spiliada Maritime Corp v Cansulex Ltd where Lord Goff said:[34]

The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

[39] As Lord Goff pointed out in applying this basic principle:[35]
[40] The House of Lords in Spiliada also made it clear that, as the solution of disputes about the relative merits of trial in the jurisdiction and trial abroad was preeminently a matter for the trial Judge, an appellate court should not interfere with the exercise of the discretion unless there has been a material error of principle on the part of the Judge.[36]
[41] On the issue of the approach this Court should adopt on appeal to Toogood J’s decision granting the stay of the proceeding under r 15.1, we are satisfied that the same result is reached whether the appeal is viewed as one against the exercise of a discretion or one against an evaluative judgment.[37]
[42] On the issue of burden of proof in an application for stay under r 6.29(3) and r 15.1 on the ground that New Zealand is not the appropriate forum for trial, we are prepared to accept, as counsel agreed, that the approach of the House of Lords in Spiliada remains applicable in New Zealand. This was the position under the old rules.[38] There is nothing in the new rules or in Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd to suggest that a different approach should be adopted in a case such as this.[39] As Toogood J recognised,[40] the position is different, however, when the applicant is seeking leave to serve a proceeding out of the jurisdiction.[41] In that situation the onus is on the applicant for leave.[42]
[43] Following the two stage approach adopted in Spiliada, which counsel agreed was appropriate, we turn now to consider:

Barbados the appropriate forum?

[44] For the following reasons, we have little difficulty in accepting that Irie Blue and Mr Gribble have discharged the burden of proof on them and that Toogood J decided correctly that New Zealand is not the natural and appropriate forum and that Barbados, which is available, is prima facie the appropriate forum. When the substance of the claims the subject of the proceeding are examined, it is clear that Barbados rather than New Zealand has the most real and substantial connection with the causes of action.
[45] The first of the remaining four causes of action against the respondents – breach of contract – arises out of an alleged contract between Exportrade, a Florida company, and a company called Colourtone Screen Printers Ltd for the supply of clothing manufactured in Florida and allegedly delivered to Barbados. It is pleaded that under the law of the State of Florida Colourtone Screen Printers Ltd and Irie Blue were the “alter egos” of Mr and Mrs Gribble and “had in fact and/or in law no separate corporate identity”. It is then pleaded that Colourtone has never been registered as a company in Barbados and that the respondents are liable “under the law of the State of Florida, USA and/or the law of Barbados” in contract; on an open account, on an account stated; and/or by unjust enrichment.
[46] Apart from the New Zealand registration of Irie Blue and Mr Gribble’s presence in New Zealand, the extent of which is disputed, there is no suggestion that the alleged contract, its alleged performance or its alleged breach have any substantial connection with New Zealand. Nor is it suggested that New Zealand law will have any relevance to the determination of any issues relating to these allegations. The law governing the contract will be the law of Florida and/or Barbados.
[47] The second of the remaining causes of action is the claim against Mr Gribble for an alleged acknowledgment of debt to Exportrade for US$362,378.21. It is based on a document dated 25 April 2000 apparently signed by Mr Gribble on behalf of Colourtone of Barbados on a letterhead with a Barbados address. It is pleaded that Mr Gribble is liable to pay the debt due under the law of the State of Florida.
[48] Again, apart from Mr Gribble’s connection to New Zealand, there is no suggestion that the acknowledgment of debt has any connection with New Zealand or that the law of New Zealand will have any relevance to the determination of the issues.
[49] The third and fourth of the remaining causes of action allege that Mr Gribble has been negligent in breaching the Barbados Companies Act and in breaching his statutory duties under that Act. It is pleaded that Mr Gribble breached his duties by: allowing Colourtone to incur liability to Exportrade when it was not in a position to pay; failing to organise the affairs of Colourtone so as to pay its debts to Exportrade as they fell due or were in arrears; promising Exportrade that the outstanding debt would be paid when the affairs of Colourtone were not so organised as to permit the payment of the debt; and failing to pay debts due to one or more other creditors.
[50] Again, apart from Mr Gribble’s current New Zealand residence, there is no suggestion that either of these causes of action has any real connection with New Zealand or New Zealand law. The governing law will be the law of Barbados.
[51] The conclusion that the Barbados court is the appropriate forum is reinforced by the following further factors:
[52] This analysis of the substance of the remaining claims against Irie Blue and Mr Gribble supports Toogood J’s conclusion that Irie Blue and Mr Gribble have discharged the burden of proof of establishing that the courts of Barbados rather than New Zealand are prima facie the appropriate forum for the trial of this proceeding.

Special circumstances why trial in New Zealand?

[53] The second question is whether Exportrade has discharged the burden of proof on it of showing that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in New Zealand. This question was not considered by Toogood J.
[54] As this question raises wider interests of justice considerations, it should be considered as at today rather than as it might have been when the proceeding was issued in 2008 or even when the application to set aside the second protest to jurisdiction was heard by Toogood J on 31 October and 1 November 2011. It would be unrealistic for this Court to disregard the effect of the subsequent passage of time when considering wider interests of justice.
[55] When this is done, we are satisfied for the following reasons that there are special circumstances in this case which enable Exportrade to discharge the burden of proof on it, namely:
[56] In the course of argument Mr Fulton made it clear that, while the respondents would not object to Exportrade issuing a new proceeding in Barbados, they would not extend their concession to any relevant limitation issue. He submitted, in reliance on Spiliada,[44] that Exportrade ought already to have issued a protective proceeding in Barbados. He did not suggest that if a stay were granted it should be on condition that the respondents waive their right to rely on any limitation period in Barbados.[45] In light of the position adopted by the respondents and in view of the significant delays that have occurred in this proceeding, which have not all been the responsibility of Exportrade, we do not consider that Exportrade should face the risk of a new proceeding in Barbados being time-barred.
[57] When these interests of justice considerations are taken into account, we are satisfied that the appropriate forum for the trial in the special circumstances of this case is New Zealand and that the application for a stay should therefore have been declined. The fact that Toogood J did not consider this second question means that, whichever approach is adopted to the nature of his decision, the appeal succeeds.

Result

[58] The appeal is allowed.
[59] The High Court has jurisdiction over the third respondent in respect of the appellant’s proceeding in New Zealand.
[60] The first and third respondents are to pay costs to the appellant for a standard appeal on a band A basis together with usual disbursements.
[61] Any costs ordered following the High Court judgment [2012] NZHC 2870 are set aside. Costs are to be reconsidered in that Court in light of this judgment.

Postscript

[62] Given the time when the causes of action arose and the period that has passed while interlocutory issues have been determined, we note that it is open to the parties to seek an early trial.






Solicitors:
Bell-Booth Sherry, Takapuna for Respondents

[1] Exportrade Corp v Irie Blue New Zealand Ltd [2012] NZHC 2870 at [58], [69], [76] and [77]–[78] [High Court decision].

[2] Exportrade Corp v Irie Blue New Zealand Ltd HC Auckland CIV-2008-404-7130, 22 December 2010 [Protest Review decision] and High Court decision, above n 1. While Exportrade filed its notice of appeal to this Court on 28 November 2012, it requested a reduction of security for costs and an extension of time to pay. Following reduction of security and an extension to 12 March 2013, an application for a fixture was filed on 29 May 2013.

[3] High Court decision, above n 1, at [1]–[23].

[4] At [60].

[5] Protest Review decision, above n 2, at [26].

[6] Von Wyl v Engeler [1998] 3 NZLR 416 (CA).

[7] High Court decision, above n 1, at [72]–[76].

[8] Judicature (High Court Rules) Amendment Act 2008, s 8(1).

[9] See Porter v Freudenburg [1915] 1 KB 857 (CA) at 887–888 per Lord Reading and Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 324. Lawrence Collins (ed) Dicey, Morris and Collins: The Conflict of Laws (15th ed, Sweet and Maxwell, London, 2012) at [11–111].

[10] Wing Hung Printing Co v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754 at [27]. Where a writ was issued in the form for service in England but the defendant was not in England, not only the service but the writ was bad: Ford v Shephard (1885) 34 WR 63 (QB).

[11] Common Law Procedure Act 1852 (UK), ss 18 and 19 and Rules of the Supreme Court, Ord 11 (see now Civil Procedure Rules 1998 (UK), sch 1). Code of Civil Procedure 1908, rr 34 and 48. See Ford v Shephard, above n 10; Sedgwick v Yedras Mining Co (1886) 35 WR 780 (QB); Western Suburban and Notting Hill Permanent Benefit Building Society v Rucklidge [1905] 2 Ch 472 (Ch) at 474; and Boyd v Barschall (1915) 25 NZLR 755 (SC).

[12] See Re Franck, ex parte Asteron Life Ltd (2009) 19 PRNZ 446 (HC) where the court granted orders for substituted service of a bankruptcy notice in respect of a respondent believed to be overseas.

[13] Most recently Bayat Telephone Systems International Inc v Lord Cecil [2011] EWCA Civ 135 and Abela v Baadarani [2011] EWCA Civ 1571. See Collins, above n 9, at [11–111].

[14] Boyd v Barschall, above n 11, at 756.

[15] Von Wyl v Engeler, above n 6.

[16] ANZ Bank New Zealand Ltd v Chung [2013] NZHC 1522 at [15]–[19]; and McGechan on Procedure (online looseleaf ed, Brookers) at [HR 6.8.05]. See also David Goddard and Campbell McLachlan “Private International Law – litigating in the transTasman context and beyond” (paper presented to the New Zealand Law Society, August 2012) at 26–27.

[17] At 420.

[18] At 421.

[19] Rule 222: see above at [8].

[20] High Court decision, above n 1, at [72].

[21] Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd, above n 10, at [34].

[22] Domicile Act 1976, ss 9 and 12.

[23] Companies Act 1993, s 377.

[24] Below at [53]–[57].

[25] Isaacs v Robertson [1985] AC 97 (PC) at 102–103.

[26] Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874 (CA).

[27] Hung Wing Hung Printing Co v Saito Offshore Pty Ltd, above n 10, at [48].

[28] High Court decision, above n 1, at [68].

[29] Below at [44]–[52].

[30] High Court decision, above n 1, at [60].

[31] High Court Rules [Rules], r 7.1(1).

[32] Wing Hung Printing Co v Saito Offshore Pty Ltd, above n 10, at [27]–[31] and [43]–[46].

[33] McConnell Dowell Constructors Ltd v Lloyd’s Syndicate 396 [1988] 2 NZLR 257 (CA), Club Mediterranee v Wendell [1989] 1 NZLR 216 (CA); and Longbeach Holdings Ltd v Bhanabhai & Co Ltd [1994] 2 NZLR 28 (CA).

[34] Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460 (HL) at 476.

[35] At 476–484.

[36] At 465 per Lord Templeman and at 484–486 per Lord Goff.

[37] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[32].

[38] Kang v Hyundai Electronics Industries Co Ltd (1995) 8 PRNZ 628 (CA) at 629.

[39] Wing Hung Printing Co v Saito Offshore Pty Ltd, above n 10, at [30]–[31].

[40] High Court decision, above n 1, at [77].

[41] Wing Hung Printing Co v Saito Offshore Pty Ltd at [31] and [44]. See also Spiliada, above n 34, at 480–481.

[42] Rules, rr 6.28(5) and 6.29(1) and (2).

[43] Evidence Act 2006, s 144.

[44] Spiliada Maritime Corp v Cansulex Ltd, above n 34, at 483.

[45] Compare Biddulph v Wyeth Australia Pty Ltd [1994] 3 NZLR 49 (HC) at 59.

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