Baz v Minarto - [2017] VSC 160

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2015 03148

ROXANNE STEPHANIE BAZ	Plaintiff
v
HARRY MINARTO	First Defendant
SIOE KIEM LO	Second Defendant
WHITE RAY (OAKLEIGH) PTY LTD (ACN 074 712 440) TRADING AS RAY WHITE OAKLEIGH	Third Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2017
DATE OF RULING:	31 March 2017
CASE MAY BE CITED AS:	Baz v Minarto and ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 160

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PRACTICE AND PROCEDURE – Application to set aside order for substituted service – Where conditional appearance filed – Substituted Service of writ and amended statement of claim – Where defendant residing in Indonesia – Where order for substituted service set aside – Informal Service – Where informal service not confirmed – Application to set aside extension of writ – Where good reason for extending writ – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 46.08, 6.10, 6.11, 7.02, 7.05, 7.09, 8.08, 2.01 – Civil Procedure Act 2010 (Vic) ss4, 7, 8, 9, 10, 16.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A C Dimsey	Shine Lawyers
For the First Defendant
For the Second Defendant	Mr A Trichardt	Charles Fice Solicitors
For the Third Defendant

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 1

Evidence............................................................................................................................................... 5

Applicable principles........................................................................................................................ 6

Submissions on service................................................................................................................... 16

Second Defendant’s Submissions.................................................................................... 16
Plaintiff’s Submissions...................................................................................................... 18

Consideration – substituted service order................................................................................... 19

Consideration - service.................................................................................................................... 20

Submissions on extension of writ................................................................................................. 24

Second Defendant’s submissions.................................................................................... 24
Plaintiff’s submissions...................................................................................................... 25

Consideration – extension of writ................................................................................................. 26

Conclusion......................................................................................................................................... 27

HER HONOUR:

Introduction

This ruling concerns whether or not orders made for extension of a writ and substituted service should be set aside. The orders were made by a Judicial Registrar on 19 August 2016 and 16 September 2016 respectively.

The application to set aside the orders is made by summons filed by the second defendant on 15 December 2016. The plaintiff opposes the application.

The second defendant makes her application pursuant to r 46.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) on the basis that the orders were made ex parte and without notice to her. It was common ground between the parties that the Court had jurisdiction to hear the application under r 46.08.

Summary

The Court will allow the application to set aside the orders for substituted service of the second defendant.

The Court will dismiss the application to set aside the orders made for extension of writ.

Background

The plaintiff filed a writ on 18 June 2015. On 11 March 2016, an amended writ and statement of claim was filed which simply corrected a typographical error in the spelling of the name of the first defendant. The first defendant’s defence to the amended statement of claim was filed on 19 July 2016.

The amended statement of claim alleges that the first and second defendants were each a registered proprietor of premises in Clayton (‘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.

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Details

Case: [2017] VSC 160
Decision Date: 31 March 2017

CaseChat Overview and Summary

Baz filed an application seeking to set aside an order for substituted service, which had been granted following an application by Minarto. The dispute involved substituted service of the writ and amended statement of claim to Minarto, who resides in Indonesia. The primary legal issues the court had to resolve were whether the substituted service was valid and whether the informal service that followed was effective. The court also considered whether the extension of the writ was justified and whether there was good reason to set aside the order for substituted service.

The court examined the procedural steps taken in the case, focusing on the compliance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the Civil Procedure Act 2010 (Vic). The court found that while substituted service was initially ordered, the informal service did not meet the necessary criteria for confirmation. However, the court acknowledged that the extension of the writ was justified due to the defendant's overseas residence and the difficulties in serving the documents. The court concluded that there was good reason to set aside the order for substituted service, as the informal service did not adequately address the jurisdictional requirements.

The court ruled that the substituted service was not valid and the informal service was not confirmed, leading to the setting aside of the order for substituted service. The court also found that the extension of the writ was warranted due to the defendant's location in Indonesia. The application to set aside the extension of the writ was denied as there was good reason for the extension. The court's decision was grounded in the procedural rules and the need to ensure that the defendant was properly served with the court documents.

The final orders of the court were that the order for substituted service was set aside, and the application to set aside the extension of the writ was dismissed. The court emphasised the importance of strict adherence to procedural requirements when serving documents on defendants residing overseas, while also acknowledging the practical challenges involved in such cases.

Orders