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After your statement and claim and notice of proceeding have been issued by the Court, the next step is to serve those Court issued documents on the defendant (or defendants, if there are more than one). You must also serve a bundle of documents by way of initial disclosure at the same time. See the part of this text dealing with initial disclosure for more about that.
Service must be carried out within 12 months of the day the statement of claim and notice of proceeding were filed unless the Court grants an extension under rule 5.72 High Court Rules.
Rule 5.71 of the High Court Rules requires the statement of claim and notice of proceeding to be served on each defendant personally unless the Court directs otherwise or the Rules require or permit a different method of service. Rule 6.11 provides:
A document may be personally served by leaving the document with the person to be served, or, if that person does not accept it, by putting it down and bringing it to the notice of that person.
Service on people outside of New Zealand or on entities who are not ‘natural persons’, such as companies, are another matter. See subparts 2 and 4 of part 6 of the High Court Rules for special rules for such scenarios. There are two rules in particular that are worth setting out here in full. First:
6.19 Service of statement of claim on certain days void
(1) A statement of claim must not be served on Christmas Day, New Year’s Day, or Good Friday.
(2) Section 54 of the Act is not affected.
For completeness, section 54 of the Judicature Act 1908 provides:
54 Service of process on Sundays void
(1) Subject to any rule of court, no person shall serve or execute, or cause to be served or executed, on Sunday any statement of claim, application, writ, process, warrant, order, or judgment of the High Court or Court of Appeal (except in cases of crime or of breach of the peace), and such service or execution shall be void to all intents and purposes whatsoever.
(2) Nothing in subsection (1) shall apply to –
(a) the service of any writ in rem or warrant of arrest in respect of any proceedings heard or to be heard in the High Court in its admiralty jurisdiction; or
(b) the service of any subpoena or interlocutory injunction.
(3) Nothing in this section shall be construed to annul, repeal, or in any way affect the common law, or the provisions of any statute or rule of practice or procedure, now or hereafter in force, authorising the service of any statement of claim, application, writ process, or warrant, in cases other than those excepted in subsection (1).
The other High Court Rule of service that is particularly noteworthy:
6.12 Personal service on New Zealand corporations
(1) A document may be served on a company incorporated under the Companies Act 1993 in accordance with section 387 of that Act.
(2) A document may be served on a corporation incorporated in New Zealand other than a company incorporated under the Companies Act 1993 –
(a) by service in accordance with rule 6.11 on –
(i) the mayor, chairman, president, town clerk, managing director, secretary, treasurer, or other similar officer of the corporation; or
(ii) any member, officer, or employee of the corporation at the corporation’s head office or principal place of business; or
(b) by leaving the document at the corporation’s registered office; or
(c) by serving the document on a member, officer, or employee of the corporation in any manner that the court directs; or
(d) by complying with any enactment that provides for service of a document on a corporation.
Service on companies
Regarding rule 6.12(1) of the High Court Rules quoted above, section 387 of the Companies Act 1993 provides:
387 Service of documents on companies in legal proceedings
(1) A document, including a writ, summons, notice, or order, in any legal proceedings may be served on a company as follows:
(a) by delivery to a person named as a director of the company on the New Zealand register; or
(b) by delivery to an employee of the company at the company’s head office or principal place of business; or
(c) by leaving it at the company’s registered office or address for service; or
(d) by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings; or
(e) in accordance with an agreement made with the company; or
(f) by serving it at an address for service given in accordance with the rules of the court having jurisdiction in the proceedings or by such means as a solicitor has, in accordance with those rules, stated that the solicitor will accept service.
(2) The methods of service specified in subsection (1) are the only methods by which a document in legal proceedings may be served on a company in New Zealand.
You can find out the registered office or address for service of a company by looking that company up in the Companies Office registry: www.business.govt.nz/companies. The registered office and address for service should appear in the ‘company summary’ part of the record for every registered company.
Process service agencies
It may prove wise to engage a professional process service agency to carry out personal service:
1. Their experience in locating and serving people can improve chances of a successful result.
2. It can be more difficult to call their credibility into question because they are a third party agency (for example, if the defendant were to argue service did not occur).
3. Their costs can be quite reasonable.
Substituted service
An application for ‘substituted service’, or service other than personal service, may be appropriate where, under rule 6.8 of the High Court Rules:
… reasonable efforts have been made to serve a document by a method permitted or required under these rules, and either the document has not come to the knowledge of the person to be served or it cannot be promptly served…
Substituted service might be carried out by email, an advertisement in a newspaper or even a message by social media such as Facebook. However, interlocutory applications such as applications for substituted service are beyond the scope of this text.
Notice of service
A notice must be given to the District Court when service has been carried out. Rule 5.73A of the High Court Rules provides:
(1) The plaintiff must notify the Registrar of the date of service of the statement of claim and notice of proceeding on each defendant or other person directed to be served.
(2) Notification under subclause (1) must be made within 7 working days after service and in writing.
Proof of service of statement of claim
Rule 6.10 of the High Court Rules describes how service may be proved to the High Court. It provides:
(1) The service of a document may be proved on oath before the court or by affidavit in form G 16.
(2) If the service of a document is proved by affidavit in form G 16, it is unnecessary, unless the court otherwise directs, for a copy of that document to be annexed if –
(a) either the original of the document or a copy of the document has, at the time of service, been filed in the registry of the court; and
(b) the affidavit contains a description of the document that –
(i) is sufficient to enable the document to be identified; and
(ii) includes the date of the document (if the document is dated).
An affidavit of service may be required before judgment is given by default or where a defendant raises an issue about service. See the part of this text dealing with judgment by default for more about that.
Affidavit of service template
You can download an High Court Affidavit of Service relating to liquidation proceedings here. Be careful to note that this document relates to High Court liquidation proceedings.
Note: This content was originally published by CourtKeys.com in 2015. Disclaimer