Bhaga v Parbhu

• Jurisdiction: New Zealand
• Judgment Date: 15 June 1954
• Date: 15 June 1954
• Court: Supreme Court

New Zealand, Supreme Court, Wellington.

(Turner J.)

Bhaga

and

Parbhu.

JURISDICTION

Jurisdiction — Territorial — Over Aliens Abroad — Service of Writs or Notice Thereof — Actions for Debt Against Aliens Resident Without the Jurisdiction — Conditions under which the Courts of New Zealand will Entertain such Proceedings.

The Facts.—Bhaga and Parbhu were Indians. Both of them emigrated to New Zealand, and established themselves as fruiterers in Wellington. The present proceedings arose out of an alleged loan, free of interest and repayable on demand in New Zealand, made by Bhaga, in the presence of witnesses, to Parbhu in May 1950. When demand was made for repayment it was found that Parbhu had gone to live in India, from where he denied the existence of any such debt. Though he had left the country it appeared that he was still part owner of certain landed property in Wellington. Bhaga filed a statement of claim, in the Supreme Court, Wellington, alleging the debt and seeking to attach this property as payment. He moved ex parte for an order granting leave to serve the defendant with the writ outside New Zealand. This order was eventually granted by Fair J., on December 12, 1952. The learned Judge took the view that Parbhu was domiciled in India, that he remained a British subject, and that he might be served with the writ in terms of the Code of Civil Procedure. The writ was duly served; no defence was entered within the set time; judgment was given by default; and an order issued charging the defendant's land in New Zealand with the amount of the judgment. At this point Parbhu took steps to defend his case, and instructed his New Zealand solicitors to resist further action by filing a motion to set the judgment aside. This latter move was successful, as it was proved that service of the writ was invalid as it had been effected on a Sunday. The plaintiff, however, gained an order renewing the writ for six months. The defendant now moved to stay all proceedings in the action on the ground that he was “resident and domiciled in the State of India”, and that he was “not a British subject but is a national of the State of India and upon the grounds that this Honourable Court has no jurisdiction over the defendant”. It was agreed by counsel that the motion should be treated as a review of the order made ex parte by Fair J. granting leave to serve a writ abroad.

Held: that the motion should be dismissed, and proceedings allowed to continue. This was a case in...