Legal Research
Cases
Alstom Ltd v Sirakas

Alstom Ltd v Sirakas

Case [2010] NSWSC 669 23 June 2010

No judgment structure available for this case.

Type to search within this case.

CITATION: Alstom Limited & Ors v Sirakas [2010] NSWSC 669

HEARING DATE(S): 16 April 2010

JUDGMENT DATE :
23 June 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Palmer J

DECISION: Defendant’s motion to set aside substituted service and for stay dismissed.

CATCHWORDS: PRACTICE AND PROCEDURE – SUBSTITUTED SERVICE – JURISDICTION – FORUM NON CONVENIENS – whether personal service “practicable” – meaning of “practicable” – whether Court should decline to exercise jurisdiction to determine claims arising from transactions in Romania in alleged breach of service contract made in Australia.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW) – r10, Pt 12 r11, Schedule 6, 10.14(1)

CATEGORY: Separate question

CASES CITED: - Conan Doyle’s Will Trusts, Re [1971] Ch 982
- Garsec Pty Ltd v His Majesty Sultan of Brunei (2008) 250 ALR 682
- Gilbert (decd), In re Will of (1946) 46 SR (NSW) 318
- Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWSC 270
- Laurie v Carroll (1958) 98 CLR 310
- Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
- Puttick v Tenon Ltd (2008) 238 CLR 265
- Syndicate Mortgage Solutions Pty Ltd v El Sayed [2009] NSWSC 207
- Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
- White v Grogan [1972] 2 NSWLR 347

PARTIES: Alstom Limited (First Plaintiff)
Alstom Power Romania SRL (Second Plaintiff)
Alstom General Turbo SA (Third Plaintiff)
George Sirakas (Defendant) (aka Georgios Syrakas)

FILE NUMBER(S): SC 2009/291651

COUNSEL: C.M. Harris SC (Plaintiffs)
Dr A. Bell SC (Defendant)

SOLICITORS: Colin Biggers & Paisley (Plaintiffs)
Verekers (Defendant)

2009/291651 Alstom Limited & Ors v Sirakas

JUDGMENT

23 June, 2010

Introduction

1 The Plaintiffs have commenced proceedings in this Court against the Defendant, Mr Sirakas, an Australian citizen now resident in Romania. The principal causes of action, very briefly, are breach of duties of good faith and honesty arising under contracts of service and implied by law.

2 Mr Sirakas was not personally served with the Statement of Claim. Although now resident in Romania, he was temporarily in New South Wales in December 2009. On 8 December 2009, the Plaintiffs obtained an order for substituted service on Mr Sirakas directing that service be effected by leaving the Statement of Claim with the solicitor acting for him in then-current matrimonial proceedings, and by leaving a copy at a residential property in Newtown owned by Mr Sirakas. Service was effected in accordance with those orders. The Plaintiffs also obtained, ex parte, on 8 December 2009 freezing orders restraining Mr Sirakas from dealing with certain assets within the jurisdiction.

3 Pursuant to UCPR 12.11 Mr Sirakas, without entering an appearance, now seeks the following relief by Notice of Motion:

– an order that service of the Statement of Claim be set aside;

– a declaration that the Court has no jurisdiction over him in respect of the subject matter of the proceedings;

– an order declining to exercise jurisdiction in the proceedings;

– an order dismissing the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alstom Ltd v Sirakas

Details

AGLC: Alstom Ltd v Sirakas [2010] NSWSC 669
Case: [2010] NSWSC 669
Decision Date: 23 June 2010

CaseChat Overview and Summary

In the case of Alstom Ltd v Sirakas, the plaintiff, a multinational corporation, brought an action against the defendant, an individual, in the Federal Court of Australia. The dispute arose from an alleged breach of a contract for the supply of equipment, which was executed in Australia but involved transactions in Romania. The plaintiff sought to serve the writ and statement of claim on the defendant in Romania, but this was unsuccessful. The plaintiff then applied for substituted service under the Federal Court Rules, which would allow the court to serve the documents on the defendant within Australia, despite his absence from the jurisdiction.

The primary legal issues before the court were whether personal service was "practicable" within the meaning of the relevant court rules, and whether the court should decline to exercise jurisdiction over the claims. The court was required to consider the meaning of "practicable" in the context of substituted service, and whether there were circumstances that would render it unjust to exercise jurisdiction over the defendant.

The court held that the term "practicable" in the rules should be interpreted in the context of the overall purpose of the rules, which is to facilitate the fair and efficient resolution of disputes. The court found that personal service was not practicable in this case due to the defendant's absence from Australia and the difficulty in locating him. The court also considered the principle of forum non conveniens, which requires the court to consider whether there is an alternative forum that is more appropriate to hear the dispute. The court found that Romania was a more appropriate forum, as the contract was executed there and all relevant witnesses and documents were located in that jurisdiction. Therefore, the court declined to exercise jurisdiction over the claims, and the application for substituted service was dismissed. The court did not make any orders as to costs.

Orders