AMP Bank Ltd v Hutt

[2016] NSWSC 1672

Supreme Court

New South Wales

Medium Neutral Citation:

AMP Bank Ltd v Hutt [2016] NSWSC 1672

Hearing dates:

25 November 2016

Date of orders:

25 November 2016

Decision date:

25 November 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. An order that personal service of the Statement of Claim on the Defendant pursuant to r 10.20(2)(a) of the UCPR be dispensed with.

 

2. An order pursuant to r 10.14 and 10.15 of the UCPR that a copy of the Statement of Claim, together with a copy of this order (collectively, Documents), be served on the Defendant by:

 

(a) sending a copy of the Documents by electronic mail to the Defendant to email address [email protected];

 

(b) sending a copy of the Documents by electronic mail to the Official Trustee, care of the Australian Financial Security Authority to email addresses [email protected] and [email protected]; and

 

(c) sending a copy of the Documents by pre-paid international post to 201 Stanyua Megumi, Sendagi, 2-11-24 1130022, Tokyo, Japan.

 

3. An order pursuant to r 10.14(2) of the Uniform Civil Procedure Rules 2005 (NSW) that the Statement of Claim be taken to have been served on the Defendant at the expiry of twenty one days after the later of the dates upon which order 2 is complied with.

 Costs of Notice of Motion reserved.

Catchwords:

PROCEDURE – service of originating process – service outside Australia – claim for possession of land - where defendant bankrupt – where trustee does not oppose claim for possession – where defendant agrees to form of service proposed

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

ASIC v Sweeney (No. 2) (2001) NSWSC 477

Category:

Procedural and other rulings

Parties:

AMP Bank Ltd (Plaintiff)
David Jacob Hutt

Representation:

Counsel:
M Youssef (Plaintiff)
Ex parte

  Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
Ex parte

File Number(s):

2016/143313

Judgment

1. The Plaintiff commenced these proceedings on 10 May 2016 claiming possession of land at 1/38 Chivers Circuit, Muswellbrook and seeking judgment against the Defendant in the amount of $333,017.15. The Defendant at the time of filing the statement of claim lived at an address in Tokyo, Japan.

2. The Plaintiff by Notice of Motion filed 22 November 2016 seeks orders that personal service of the statement of claim be dispensed with and orders under Rules 10.14 and 10.15 Uniform Civil Procedure Rules 2005 (NSW) that a copy of the statement of claim be served on the Defendant by sending a copy of the documents to an identified email address and by prepaid international post to his address in Japan. The Notice of Motion also seeks that the documents be served by sending a copy of the documents by email to the Official Trustee of the Australian Financial Security Authority. That arises because on 21 July 2016 the Defendant filed a debtor's petition and became bankrupt.

3. Rule 10.14 requires that an application for an order must be supported by an affidavit by the applicant that includes a statement as to the applicant's knowledge of the whereabouts of the person to be served and a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose, including any communications by telephone, fax or email. The affidavit of Matthew Youssef sworn 21 November 2016 satisfies the requirements of sub-rule 3A in that regard. The email correspondence between those acting on behalf of the Plaintiff and the Defendant discloses that the Defendant is agreeable to being served with the process by email. I note in this regard, however, that the agreement does not comply with the provisions of rule 10.6. Such an agreement had been obtained in relation to previous proceedings by the Plaintiff against the Defendant concerning an adjoining property.

4. The solicitor for the Plaintiff has quite properly drawn my attention to a judgment of ASIC v Sweeney (No. 2) (2001) NSWSC 477 where Austin J said when discussing substituted service abroad (at 481):

There is a principle that a Plaintiff should not be permitted to use substituted service as a means of sidestepping the obstacles to personal service abroad.

The affidavit of Mr Youssef sets out what some of those difficulties might be, including the requirement that the material to be served should be translated into Japanese, notwithstanding that the Defendant is at least primarily an English-speaking person.

5. There seem to be a number of reasons why what is said by Austin J should not stand in the way of substituted service being provided in the present case. The first is that his Honour's decision was made under the equivalent provisions of the Supreme Court Rules and prior to the coming into operation of the Civil Procedure Act 2005 (NSW). Section 56 of the Civil Procedure Act is an overriding consideration in relation to procedural matters.

6. The second reason is that in the present case the Defendant is an undischarged bankrupt. He retains only a bare legal interest in the property. There are authorities indicating that he has no right to appear to oppose the making of an order for possession. The trustee does not oppose the order for possession sought in the proceedings.

7. Thirdly, I am satisfied that the Defendant is agreeable to be served in the manner suggested.

8. Those matters when taking together indicate to me clearly that the judgment in Sweeney (No. 2) is distinguishable from the present case. The cost and delay involved in following the normal channels of service outside the jurisdiction of Australia mean that that course of action is entirely unjustified in the particular circumstances of this case.

9. The Defendant is not disadvantaged by substituted service being ordered, not only because he is an undischarged bankrupt, but because I am satisfied that he has agreed that service should be able to be effected on him on the way proposed by the Plaintiff. I am satisfied that the email address identified in prayer 3(a) of the Notice of Motion is an email address that will come to the attention of the Defendant because it is the address which has been used in prior communications between the Plaintiff and the Defendant.

10. In those circumstances, I make orders in terms of prayers 2, 3 and 4 of the Notice of Motion filed 22 November 2016. The costs of the Notice of Motion are reserved.

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Decision last updated: 28 November 2016