Abbott v Clark

[2006] NSWSC 111

CITATION:	Abbott v Clark [2006] NSWSC 111
HEARING DATE(S):	13 February 2006
JUDGMENT DATE :	13 February 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Service of summons on defendant dispensed with.
CATCHWORDS:	PROCEDURE [81] – Supreme Court Procedure – Practice under Uniform Civil Procedure Rules – Preliminary rules and generally – Dispensing with compliance with rules – Dispensing with service of summons on defendant.
LEGISLATION CITED:	Civil Procedure Act 2005 s 14 Matrimonial Causes Act 1899 s 65
CASES CITED:	Grimaldi v Grimaldi (1941) 58 WN(NSW) 91 Iovanescu v McDermott [2004] NSWCA 106 Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR(NSW) 141
PARTIES:	Sylvia Abbott (P) Roy Clark (D)
FILE NUMBER(S):	SC 6464/05
COUNSEL:	K J Andronos (P) No appearance (D)
SOLICITORS:	MWA Lawyers (P) No appearance (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 13 FEBRUARY 2006

6464/05 SYLVIA ABBOTT v ROY CLARK

JUDGMENT

1 HIS HONOUR: In this matter the plaintiff applies for dispensation with service of the originating process. The facts of the case are very unusual. The plaintiff deposes that she and her husband came to Australia in 1972 from the United Kingdom as immigrants, on the same ship as a couple named Clark, with whom they became friendly. They sought to buy a house. They were told that they could borrow the money only if there were a guarantor. Mr Clark, who is now the defendant, offered to go guarantor. Documents concerning the mortgage were signed.

2 It now appears that what the St George Bank, the intending mortgagee, required was that Mr Clark be a party to the mortgage and be on the title to the property to be purchased. The plaintiff swears that she was completely unaware of this until she discovered in 1996 that Mr Clark was on the title, with her husband and herself, as one of three joint tenants, so that, did both the Abbotts predecease Mr Clark, he would become the sole proprietor of the property. Other events at about that time were that Mr Abbott died in 1996. Mr and Mrs Abbott and, after Mr Abbott’s death, Mrs Abbott paid all the instalments under the mortgage, which was discharged in 1998.

3 In the meantime the situation with the Clarks was that, Mr Clark being unable to find his specialised form of employment in the film industry in Australia, the Clarks returned to the United Kingdom in about 1974. They remained in correspondence with the Abbotts for a few years thereafter, but before 1980 they had lost touch. When the Abbotts visited the United Kingdom in 1980, despite efforts, they were unable to locate the Clarks.

4 The plaintiff’s solicitor has done a job of very great thoroughness in attempting to locate Mr Clark now and, indeed, to ascertain whether he is still alive or is dead. This has included searches or attempts to search in all the registries of births, deaths and marriages in Australia, and an attempt to have a search made in the English register. This, after some correspondence, the English Registry declined to do, because of the commonness of the names Clark and Roy Clark, the length of time (more than 30 years) during which the death could have occurred, and the lack of knowledge, both of any place of death and even the date of birth of Mr Clark. Other searches have been made in electoral rolls in Australia. Advertisements have been placed both in The Australian and in The Times in the United Kingdom. The solicitor, Mr Downie, who was initially the vendor’s solicitor and subsequently came to act for the purchasers also, has been pursued but cannot now be located. I do not go into every detail, but the searches have been commendably thorough.

5 Mr Andronos, of counsel for the plaintiff, submits that the appropriate course is to dispense altogether with service. This can only be done under the general dispensing power in s 14 of the Civil Procedure Act 2005. There is remarkably little authority, bearing in mind that orders dispensing with service are made in the Court from time to time, as to the principles upon which applications for dispensation with service can be dealt with.

6 The onus is, of course, very squarely on the person seeking the dispensation and real grounds must be made out for the dispensation to occur: Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR(NSW) 141 per Cullen CJ at 144; Iovanescu v McDermott [2004] NSWCA 106 per Young CJ in Eq at [5]. In Grimaldi v Grimaldi (1941) 58 WN(NSW) 91 at 92 - 93, Bonney J, in relation to a provision in s 65 of the Matrimonial Causes Act 1899 permitting dispensation with service of a divorce petition, pointed out the dangers which may arise from dispensation with service:

“Dispensing with service is open to two serious objections which should not be lightly incurred. The first objection is that it deprives the respondent of the opportunity of being heard in defence of his status, his rights and his conduct. The second objection is that it affords a dishonest and untruthful petitioner, who is bold enough to make out a false case of expediency, a good chance of success against a respondent whose whereabouts he knows and conceals and who would be likely to resist if served. Therefore a Court should not readily or lightly hold that a case of expediency has been made out.
It may be ‘expedient’ to dispense with service where refusal would make it substantially impossible for the petitioner to prosecute his or her claim, while the granting of the order would be most unlikely to work any real injustice to the respondent. I am not saying that this is an exhaustive statement, but it appears to cover the present case.”

7 It is at least possible in a case such as the present that a plaintiff, desiring to obtain somebody else’s interest in a property, might tell a concocted story as to the circumstances, in which it is said that the defendant has in fact no beneficial interest in the property, and avoid the controversion of this story by applying for dispensation with service. On the other hand, there is no doubt that one of the circumstances in which service may be dispensed with is where the continued application of the requirement for service will prevent the proceedings from continuing. In reality, the present is such a case.

8 I have already commented on the thoroughness of the investigations pursued by the plaintiff’s solicitor. It seems to me that a case for dispensation is made out. Because of the thoroughness of those steps, the possibility of bringing the proceedings to the defendant’s notice appears non existent.

9 The only alternative course, instead of dispensing altogether with service, appears to be to order substituted service. But on the evidence, the only form of substituted service that would make any sense would be the publication of a notice in a newspaper or newspapers with wide circulation in Australia and the United Kingdom. As I have noted, notices have been published already in The Australian and The Times and no response whatever was forthcoming. In those circumstances, I am minded to make the order sought by Mr Andronos. I order that the service of the summons in these proceedings on the defendant be dispensed with.

**********