AIA Australia Ltd v Richards (No 2)

FEDERAL COURT OF AUSTRALIA

AIA Australia Ltd v Richards (No 2) [2017] FCA 539

File number:

NSD 1853 of 2016

Judge:

ALLSOP CJ

Date of judgment:

12 May 2017

Date of publication of reasons:

22 May 2017

Catchwords:

PRACTICE AND PROCEDURE – service outside of jurisdiction – leave given to serve by registered post – service unsuccessful – documents sent by email at request – order for substituted service

Legislation:

Insurance Contracts Act 1984 (Cth) s 56

Federal Court Rules 2011 (Cth) r 10.49

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Opened for signature 15 November 1965. 658 UNTS 163 Arts 8, 10. (entered into force 1 November 2010)

Cases cited:

AIA Australia Ltd v Richards [2017] FCA 84

Date of hearing:

Determined on the papers

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance
Insurance List

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

Ms R Francois

Solicitor for the Applicant:

William Roberts Lawyers

Counsel for the Respondent:

The respondent did not appear

ORDERS

NSD 1853 of 2016

BETWEEN:

AIA AUSTRALIA LTD

Applicant

AND:

VINCENT BRIAN RICHARDS

Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	12 MAY 2017

THE COURT ORDERS THAT:

1.Pursuant to r 10.49(c) of the Federal Court Rules 2011 (Cth), the amended originating application, amended statement of claim and affidavits of Mr Brian Silva sworn on 19 October 2016 and 30 January 2017 be taken to have been served on the respondent by email on 29 April 2017.

2.On or before 15 June 2017, the respondent file and serve any defence.

3.The proceeding be listed for a further case management hearing at 9:30am on 19 June 2017.

4.On or before 5:00pm AEST on 15 May 2017, the applicant send a copy of these orders to the respondent by email at [e-mail].

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1. On Friday 12 May 2017, I made orders in chambers providing for the substituted service of Vincent Brian Richards of the amended originating application, amended statement of claim and affidavits of Mr Brian Silva sworn 19 October 2016 and 30 January 2017. These orders were made pursuant to r 10.49(c) of the Federal Court Rules 2011 (Cth). 

2. The matter concerns a claim by the insurer, the applicant, seeking declarations that it validly refused to pay claims made by Mr Richards pursuant to s 56(1) of the Insurance Contracts Act 1984 (Cth), that the contract was validly cancelled by the applicant in October 2016 or, in the alternative, that the contract has been validly terminated by the applicant. Damages for breach of contract are also sought and, in the alternative to those damages, judgment for the sum of $37,629.92 being moneys had and received (that is an order in restitution) for moneys paid under a mistake of fact.

3. The long and short of…