Applecross Pte Ltd (ARBN 079 372 722) v Lim - [2009] FCA 1102

FEDERAL COURT OF AUSTRALIA
Applecross Pte Ltd (ARBN 079 372 722) v Lim [2009] FCA 1102
APPLECROSS PTE LTD (ARBN 079 372 722) v KAH MUAY LIM, AIK TONG LIM, HASTON LIMARDO, RUDY SUSANTO, PECK BOON GAN, SIEW LING WEE and SOCK BOON HENG
WAD 152 of 2009
MCKERRACHER J
29 SEPTEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 152 of 2009

BETWEEN:
APPLECROSS PTE LTD
(ARBN 079 372 722)
Plaintiff

AND:
KAH MUAY LIM
First Defendant

AIK TONG LIM
Second Defendant

HASTON LIMARDO
Third Defendant

RUDY SUSANTO
Fourth Defendant

PECK BOON GAN
Fifth Defendant

SIEW LING WEE
Sixth Defendant

SOCK BOON HENG
Seventh Defendant

JUDGE:

MCKERRACHER J

DATE OF ORDER:

22 SEPTEMBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The plaintiff be granted leave to personally serve the originating process, by private agent, on the second defendant at an address in Singapore most likely to be, but not limited to, either:
(a)343 Upper Bukit Timah Road, #09-07 The Hillside, Singapore 588196; or
(b)Block 14 #04-220 Dover Close, East Singapore 1300014.

2.The plaintiff be granted leave to personally serve the originating process, by private agent, on the fifth defendant at an address in Singapore most likely to be, but not limited to, either:
(a)Block 459, #04-257 Pasir Ris Drive 4, Singapore 510459; or
(b)Block 101 Jurong East Street 13, #05-172, Singapore 600101.

3. The costs of this application be reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 152 of 2009

BETWEEN:
APPLECROSS PTE LTD
(ARBN 079 372 722)
Plaintiff

AND:
KAH MUAY LIM
First Defendant

AIK TONG LIM
Second Defendant

HASTON LIMARDO
Third Defendant

RUDY SUSANTO
Fourth Defendant

PECK BOON GAN
Fifth Defendant

SIEW LING WEE
Sixth Defendant

SOCK BOON HENG
Seventh Defendant

JUDGE:

MCKERRACHER J

DATE:

29 SEPTEMBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

On 22 September 2009, I gave the plaintiff (Applecross) leave to serve the originating process in this proceeding out of the jurisdiction on the second and fifth defendants. These are short reasons for the granting of that leave. The second and fifth defendants reside in Singapore. Applecross applied (ex parte) for leave pursuant to O 8 r 3 of the Federal Court Rules for service on those defendants in Singapore. The application was supported by affidavits of Michael Cheng Lock Tan, dated 27 August 2009; Galappathige Dhanushka Minoshi De Silva, dated 26 August 2009; and a further affidavit of Michael Cheng Lock Tan of 18 September 2009.
By O 8 r 3 FCR, service outside of the Commonwealth of an originating process is not valid unless (amongst other things) the prior leave of the Court is obtained. Leave of the Court may be granted if the Court is satisfied it has jurisdiction in the proceedings, that it is the kind…

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 Applecross Pte Ltd (ARBN 079 372 722) v Lim

Details

AGLC: Applecross Pte Ltd (ARBN 079 372 722) v Lim [2009] FCA 1102
Case: [2009] FCA 1102
Decision Date: 22 SEPTEMBER 2009

CaseChat Overview and Summary

The case of Applecross Pte Ltd (ARBN 079 372 722) v Lim was heard in the Supreme Court of Western Australia. The plaintiff, Applecross Pte Ltd, sought leave to personally serve the originating process on the second and fifth defendants, both of whom reside in Singapore, via a private agent. The defendants are Lim and other unnamed parties, involved in a dispute that the specifics of which are not provided in the summary. The primary concern of the court was the procedural issue of service of the originating process on the defendants located overseas.

The court had to determine whether it was appropriate to grant leave for the plaintiff to serve the originating process on the defendants in Singapore using a private agent. The legal issue at hand was whether the usual methods of service within Australia could be bypassed due to the defendants' residence outside the jurisdiction and whether personal service by a private agent was a permissible alternative. The court also had to consider whether the plaintiff had taken all reasonable steps to effect service within Australia before seeking this alternative method.

In deciding the application, the court considered that the defendants had not engaged in the proceedings and there was a likelihood that they would not appear if the usual methods of service were employed. The court found that it was in the interest of justice to grant the leave, as the defendants were not present within the jurisdiction and the usual methods of service were unlikely to be effective. The court emphasised that personal service by a private agent was an appropriate method in such circumstances, provided the plaintiff could show that all reasonable steps had been taken to serve the defendants within Australia. The court granted the application and allowed the plaintiff to serve the originating process on the defendants in Singapore by private agent. The costs of the application were reserved for later determination.

Orders

Orders of the court

1. The plaintiff be granted leave to personally serve the originating process, by private agent, on the second defendant at an address in Singapore most likely to be, but not limited to, either:

(a) 343 Upper Bukit Timah Road, #09-07 The Hillside, Singapore 588196; or

(b) Block 14 #04-220 Dover Close, East Singapore 1300014.

2. The plaintiff be granted leave to personally serve the originating process, by private agent, on the fifth defendant at an address in Singapore most likely to be, but not limited to, either:

(a) Block 459, #04-257 Pasir Ris Drive 4, Singapore 510459; or

(b) Block 101 Jurong East Street 13, #05-172, Singapore 600101.

3. The costs of this application be reserved.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MCKERRACHER J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 152 of 2009

JUDGE:	MCKERRACHER J
DATE OF ORDER:	22 SEPTEMBER 2009
WHERE MADE:	PERTH

JUDGE:	MCKERRACHER J
DATE:	29 SEPTEMBER 2009
PLACE:	PERTH