Service outside the Jurisdiction

A statement of claim or counterclaim in proceedings filed in the High Court (together with the relevant notice of proceeding or third party notice) which cannot be served in New Zealand may be served out of New Zealand without first seeking the leave of the Court in the following cases:

High Court Rules, r 6.27

– where the proceeding is brought in the High Court for the execution of the trusts of any written instrument of which the person to be served is a trustee and which ought to be executed according to the law of New Zealand; r 6.27(2)(f).

– where any person out of New Zealand is a necessary or proper party to a proceeding properly brought against some other person duly served or to be served within New Zealand; r 6.27(2)(h).

The rule permits a person sued in New Zealand to serve a counterclaim on the plaintiff at an address for service in New Zealand and on any necessary or proper parties to the counterclaim as counterclaim defendants outside New Zealand.

Where overseas defendants joined enter a protest to jurisdiction, the plaintiff is required to show a good arguable case that the overseas defendants are “necessary or proper parties”.

A defendant who resides out of the jurisdiction will not be lightly subjected to a local jurisdiction. The burden on the plaintiff is light and lower than the tests for striking out and summary judgment because refusing to exercise jurisdiction might determine the matter.

[28] However, there is no doubt that Jacobsen FT, as one of the Jacobsen group of companies, holding 12 “A” units in the QPAM Trust, will be a party affected by any decisions relating to the trust, or indeed its sole trustee QPAM. If it is not a party to these proceedings, it will not be bound by any decision. Therefore, one important unit holder might remain immune to the outcome of the litigation. If it refused to be bound by any decision in the litigation, there would have to be a further proceeding covering the same ground to obtain the same declaration against Jacobsen FT.

The rules do not permit proceedings commenced by originating application to be served outside New Zealand without the leave of the Court.

HC r 6.27 When service is allowed without leave

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

(h) when the 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.

The plaintiff must have an arguable case which is pursued in good faith against the party served in New Zealand, and also against the person to be served outside New Zealand

A “good arguable case” is more than a serious question to be tried. The constituent elements of the test were stated as follows:

There are two stages in this inquiry. First, is there a serious or substantial legal question to be tried or argued on a particular cause or causes of action? Second, if so, has [the plaintiff] established a credible narrative or plausible factual basis for the legal question? At the second stage the touchstone is satisfaction that the claim is more than merely speculative ([Stone v Newman] at para 24). All relevant evidence and the pleadings are to be considered. If both questions are answered affirmatively, [the plaintiff’s] argument will be sufficiently strong to warrant the New Zealand Court accepting jurisdiction; its case will have a strong foundation. In that event, the Court’s inquiry should cease, and its scope should not widen into disputed questions of fact.

The question is whether, if a person had been within the jurisdiction, that person could have been properly sued together with the other defendant within the jurisdiction.

The High Court Rules,

r 6.27(2) 

(j) when the case “ arises under an enactment” and:

(iv) the enactment expressly confers jurisdiction on the court over persons outside New Zealand (in which case any requirements of the enactment relating to service must be complied with).

In Kuehne + Nagel International AG v Commerce Commission the Court held that, in relation to the first stage of the inquiry under r 6.29(1)(a) if there was a “good arguable case” that a claim fell wholly within r 6.27(2)(j)

6.28 When allowed with leave

(5) The court may grant an application for leave if the applicant establishes that—

(a) the claim has a real and substantial connection with New Zealand; and

(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.

A party served may enter an appearance limited to protesting the court’s jurisdiction. HC r 5.49 6.29 Court’s discretion whether to assume jurisdiction

(1) If service of process has been effected out of New Zealand without leave, and the court’s jurisdiction is protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—

(a) that there is—

(i) a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and

(ii) the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d); or

(b) that, had the party applied for leave under rule 6.28,—

(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.

(2) If service of process has been effected out of New Zealand under rule 6.28, and the court’s jurisdiction is protested under rule 5.49, and it is claimed that leave was wrongly granted under rule 6.28, the court must dismiss the proceeding unless the party effecting service establishes that in the light of the evidence now before the court leave was correctly granted.

(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.

HC r 18.1 Types of proceedings This Part applies to the following types of proceedings:

(a) Equitable jurisdiction proceedings in which the relief claimed is wholly within the equitable jurisdiction of the court, such as—

(v) the giving of directions to persons in their capacity as executors, administrators, trustees, or beneficiaries to do or abstain from doing a particular act:

(ix) the determination of a question that arises in the administration of an estate or trust or whose determination is necessary or desirable to protect the executors, administrators, or trustees:

(b) Determinations by court under statutes proceedings in which the relief is claimed solely under the following enactments:

(xiii) the Trustee Act 1956:

An example of a proceeding solely under an Trustee Act 1956 (enactment) is s. 66 Right of trustee to apply to Court for directions

(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of any such property, or respecting the exercise of any power of discretion vested in the trustee.

(2) Every such application shall be served upon, and the hearing may be attended by, all persons interested in the application or such of them as the Court thinks expedient.

HC r 18.4 Commencement of proceedings

(1) A proceeding under this Part must be—

(a) commenced by statement of claim; and

(b) [accompanied by an application for directions as to service and representation under rule 18.7.]

(2) The application of this Part to a proceeding does not prevent the commencement of that proceeding by originating application if it is eligible to be so commenced under Part 19, in which event this Part does not apply.

HC r 18.5 Naming of defendants in cases involving deceased estates or trusts (1)This rule applies to a proceeding that—

(a) involves a deceased estate or a trust; and

(b) is not commenced by the personal representative of the deceased person or the trustee of the trust.

(2) The only defendant that may be named in the statement of claim is the personal representative or the trustee.

If an application for directors was made under the Trustee Act 1956 section 66, this would be made by the trustee so the above HC rule 18.5 would not apply

HC r 19.5

(1) The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application. (2) The court’s permission may be sought without notice.

In summary, it appears that, in general, a New Zealand Court will permit matters concerning trusts made under New Zealand law to be commenced in New Zealand and they may be served on defendants outside the jurisdiction without first having obtained the leave of the court. The court will not entertain an action which involves the question of title to, or the right to possession of, foreign immovables. The courts apply the law of New Zealand to determine whether domestic law or that of a foreign jurisdiction is applicable.

The law of New Zealand, in general, incorporates the doctrine of renvoi, meaning that where foreign courts have refused jurisdiction the courts of New Zealand will, in certain circumstances, accept a reference back. This rule (that the New Zealand court will not entertain questions concerning the above rights to foreign immovable) includes two exceptions:

I. the Court has jurisdiction in personam in cases involving foreign immovables against people subject to its jurisdiction when there exists between the parties a personal obligation or equity arising out of contract, or trust, or from fraud or other unconscionable conduct. Parker J in Deschamps v Miller explained this class of exceptions thus : . . . they all depend on the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of a Court of Equity in this country, would be unconscionable, and do not depend for their existence on the law of the locus of the immovable property.

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