MONASTERIO AND MOYA V BUJAK AND ORS HC CHCH CIV 2008-409-001901

MONASTERIO AND MOYA V BUJAK AND ORS HC CHCH CIV 2008-409-001901

The substituted service order was set aside because plaintiffs had not demonstrated reasonable efforts to locate and serve the second defendant in Poland; leave granted to reapply provided plaintiffs first authorise Polish lawyers to check the Ministry registry. The Mareva freezing orders were not set aside because extradition posed a real risk assets could be removed and there was a good arguable case of deceit and negligence; however the freezing orders must be amended to a 'light‑handed' form to permit reasonable living and litigation expenses and to avoid disproportionate restraint on property.

Citation
openlaw-26962066_03af_4559_8b76_eb7123e33ceb.pdf
Parties
Plaintiffs: Marcos Erik Monasterio and Maria Jose Marcos Moya; First Defendant: Slawomir Ryszard Bujak; Second Defendant: Danuta Aleksandra Zalwowska-Spisak; Third Defendant: Hugh Shearer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 March 2009
Procedural Posture
Civil Tort and Contract (property Damage, Misrepresentation, Negligence) / Interlocutory Applications (applications to Set Aside Substituted Service and Mareva/freezing Orders)
Outcome
Substituted service order set aside with leave to reapply subject to plaintiffs demonstrating reasonable efforts to obtain the second defendant's address in Poland; Mareva freezing orders upheld but to be varied to light‑handed freezing orders; costs reserved.
Legal Topics
Substituted Service, Freezing Order / Mareva Injunction, Deceit / Misrepresentation, Duty to Warn, Service Abroad, Extradition Impact on Asset Preservation
Civil Procedure Tort (negligence) Contract (misrepresentation) Equity (freezing/mareva Orders) Property Law Substituted Service Freezing Order / Mareva Injunction Deceit / Misrepresentation +3 more

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Parties

Marcos Erik Monasterio and Maria Jose Marcos Moya

Plaintiffs

Slawomir Ryszard Bujak

First Defendant

Danuta Aleksandra Zalwowska-Spisak

Second Defendant

Hugh Shearer

Third Defendant

Procedural Posture

Civil Tort and Contract (property Damage, Misrepresentation, Negligence) / Interlocutory Applications (applications to Set Aside Substituted Service and Mareva/freezing Orders)

Legal Issues

  1. 1 Whether substituted service on the first defendant for the second defendant was justified without direct reasonable efforts to locate the second defendant in Poland
  2. 2 Whether the ex parte Mareva freezing orders should be set aside given lack of evidence of intent to remove assets and deficiencies in pleadings
  3. 3 Whether there is a good arguable case and a real risk assets will be removed given likely extradition

Ratio Decidendi

The substituted service order was set aside because plaintiffs had not demonstrated reasonable efforts to locate and serve the second defendant in Poland; leave granted to reapply provided plaintiffs first authorise Polish lawyers to check the Ministry registry. The Mareva freezing orders were not set aside because extradition posed a real risk assets could be removed and there was a good arguable case of deceit and negligence; however the freezing orders must be amended to a 'light‑handed' form to permit reasonable living and litigation expenses and to avoid disproportionate restraint on property.

Court Disposition

Substituted service order set aside with leave to reapply subject to plaintiffs demonstrating reasonable efforts to obtain the second defendant's address in Poland; Mareva freezing orders upheld but to be varied to light‑handed freezing orders; costs reserved.

Orders

  • Substituted service order set aside; plaintiffs granted leave to reapply upon demonstrating reasonable efforts to obtain second defendant's registered address from the Polish Ministry of Interior and Administration
  • Plaintiffs to bear the cost (approximately NZD 1,000) of authorising Polish lawyers to check the Ministry registry