Allianz Australia Insurance Limited v Yu (No 1)

[2020] NSWSC 1914

Supreme Court

New South Wales

Medium Neutral Citation:

Allianz Australia Insurance Limited v Yu (No 1) [2020] NSWSC 1914

Hearing dates:

16 December 2020

Date of orders:

16 December 2020

Decision date:

16 December 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Service is taken to have been effected no later than 5pm on 14 December 2020

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – against third party – where service of order is unable to be effected – where all reasonable steps have been taken to achieve service – where evidence that the third party is aware of the order – service taken to be effected

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW) s 118

Uniform Civil Procedure Rules 2005 (NSW) r 10.14(3)

Cases Cited:

Not applicable

Texts Cited:

Not applicable

Category:

Procedural and other rulings

Parties:

Allianz Australia Insurance Limited (Plaintiff)
Soo Yeon Yu (Defendant)
Hyun Sook Chung (Respondent)

Representation:

Counsel:
J. Catsanos SC (Plaintiff)
P. Berg (Defendant)

Solicitors:
Sparke Helmore (Plaintiff)
Cambridge Lawyers Campsie (Defendant)
No appearance (Respondent)

File Number(s):

2020/232929

Judgment

1. This matter is before me today for the consideration of the continuation of property preservation orders made by Wright J on 11 December 2020. The orders made by his Honour dissolve at midnight tonight unless extended.

2. His Honour, so far as the respondent to the motion for the freezing order is concerned, proceeded ex parte because at the time the application was made, the plaintiff was unable to prove service.

3. His Honour made a direction for personal service, by the close of business on Monday 14 December. Personal service has not been effected, and Mr Catsanos of Senior Counsel has moved on a motion filed this morning for an order for substituted or informal service on Ms Chung under Uniform Civil Procedure Rules 2005 (NSW), r 10.14(3). In support of that motion, he relies upon the affidavit of his instructing solicitor, Jack Jones, filed on 10 December in support of the motion for the freezing order and also a second affidavit of Mr Jones, sworn today, 16 December 2020, directly in relation to the motion.

4. Mr Berg of learned counsel appears for the defendant, Mr Yu, but he does not appear for Ms Chung and has no instructions to speak for her or defend in any way her interests.

5. The rule relied upon is in the following terms:

If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

6. Mr Catsanos has developed his argument carefully by reference to the evidence before me. Without detailing the whole of it, notwithstanding the importance of this issue for Ms Chung, I am satisfied, as he submits, that the evidence has the flavour of a person evading service.

7. A number of facts are significant. I am satisfied from the content of annexure G at page 45 of Mr Jones's affidavit of 10 December 2020, read in the light of the material annexed to his second affidavit of 16 December 2020, that Ms Chung was the female person in the company of Mr Yu when he was served with the initiating process on 13 September 2020. I am also satisfied from the second affidavit of Mr Jones, and without casting any aspersions by the matter I am about to refer to, that Ms Chung does, at least from time to time, reside at the premises at Thornleigh, where several attempts have been made to effect service since Wright J extended the time for service and, indeed, before then from 10 December 2020.

8. I am satisfied on the basis of the reports of the process server, that the Thornleigh address is the Yu family home and that the information provided by the neighbour suggests that Ms Chung does at least reside there from time to time, and has for about the last two months.

9. According to the information provided by a neighbour, she generally drives a Lexus motor vehicle and, indeed, Mr Yu and Ms Chung were using a Lexus vehicle at the time of the service of the initiating process, I have referred to. There is no doubt in my mind that the process server has spoken to the defendant, Mr Yu, given that he is represented I should add not nefarious purpose, during the course of attempting to serve Ms Chung and was told, as recently as 14 December, that Ms Chung was not home, she was at a place in Terrigal which is registered in her name and that she won't be back until Friday, that is to say 18 December.

10. That attempts have been made to serve her at Terrigal unsuccessfully is not necessarily to the point. The process servers have also spoken to a young male, apparently, I would infer, the son of Mr Yu and Ms Chung, who has stated on occasion when spoken to that Ms Chung was "not home".

11. When one adds to those facts, the statement by Mr Yun, solicitor, who acts for Mr Yu, that he is instructed that Mr Yu and Ms Chung have separated, but that they speak from time to time and she is aware of the matter and of the listing today, one gets the impression, as I have said, of an attempt at evasion of service.

12. The fact that they may be separated does not gainsay the available inference that she does reside at the Thornleigh address mostly, but from time to time is at Terrigal.

13. I am therefore satisfied that Ms Chung, on the whole of that evidence I have referred to, is aware of the proceedings. I am also satisfied that every reasonable step has been taken for the purpose of bringing the motion and affidavit to her notice and I am prepared to hold that the document should be taken to have been served on her by, at the latest, 5pm on Monday 14 December 2020, the time fixed by Wright J for service.

14. I should add, the importance of her involvement in the proceedings is that she is the registered proprietor of the Terrigal premises, as I have said. It is part of the plaintiff's case that the funds, the financial advantage that the plaintiff asserts Mr Yu obtained by deceit or by misleading or false statements under s 118 of the Motor Accidents Compensation Act 1999 (NSW), were funnelled into that property. That is to say, that property is said to be the proceeds of Mr Yu's deceit or misleading or false statement in the statutory sense.

15. I repeat, service is taken to have been effected no later than 5pm on 14 December.

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Decision last updated: 23 December 2020