bCode Pty Ltd (in liq) v Holford

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FEDERAL COURT OF AUSTRALIA

bCode Pty Ltd (in liq) v Holford [2018] FCA 798

File number: NSD 177 of 2018
Judge: GLEESON J
Date of judgment: 31 May 2018
Catchwords: PRACTICE AND PROCEDURE – application for substituted service – where defendant resident in gated housing estate – application granted
Legislation: Federal Court Rules 2011 r 10.24
Cases cited:

Australian Securities and Investments Commission v China Environment Group Ltd [2013] FCA 286

Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603

Ricegrowers Co-operative Ltd and Another v ABC Containerline NV and Others (1996) 138 ALR 480

Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA (1994) 15 ACSR 347
Date of hearing: Determined on the papers
Date of last submissions: Email dated 23 May 2018 (Plaintiff)
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Category: Catchwords
Number of paragraphs: 17
Solicitor for the Plaintiff: Ms L Scotton of Bradley Allen Love Lawyers

ORDERS

NSD 177 of 2018
BETWEEN:

BCODE PTY LTD (IN LIQUIDATION) (ACN 083 289 061)

Plaintiff
AND:

TROY PATRICK HOLFORD

First Defendant

JOSEPH GORDON LEBTRATO

Second Defendant

HWL EBSWORTH LAWYERS

Third Defendant

JUDGE:

GLEESON J

DATE OF ORDER:

31 MAY 2018

THE COURT ORDERS THAT:

1.Personal service of the service of the originating application, statement of claim and genuine steps statement, each filed 13 February 2018, be dispensed with.

2.Pursuant to r 10.24 of the Federal Court Rules 2011, service of the originating application filed 13 February 2018, the statement of claim filed 13 February 2018, the genuine steps statement filed 13 February 2018 and this order may be effected by:

(a)posting the documents addressed to the first defendant by pre-paid express post to 2090 The Circle, Sanctuary Cove, Queensland, 4212; and

(b)transmitting the documents as attachments to an email to troy@holfords.net addressed to the first defendant.

3.The documents referred to in order 2 will be taken to be served seven days after the applicant completing the steps in order 2.

4.Costs of the application be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GLEESON J:

  1. The plaintiff (“bCode”) applied for substituted service on the first defendant (“Mr Holford”) pursuant to r 10.24 of the Federal Court Rules 2011.

  2. Rule 10.24 provides:

    If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

    (a)       substituting another method of service; or

    (b)specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

    (c)       specifying that the document is taken to have been served:

    (i)        on the happening of a specified event; or

    (ii)       at the end of a specified time.

    Evidence in support of application

  3. The evidence in support of the application comprises an affidavit of Laura Scotton, solicitor, sworn 21 May…

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Details
Case
[2018] FCA 798
Decision Date

CaseChat Overview and Summary

The parties in this case were bCode Pty Ltd, in liquidation, and Troy Holford. The dispute concerned the service of legal documents on Holford, which was found to be impracticable due to his residence in a secure gated housing estate. The matter was heard in the Federal Court of Australia. The court was required to decide whether substituted service of the originating application, statement of claim, genuine steps statement, and the order itself could be granted under Rule 10.24 of the Federal Court Rules 2011.

The court examined the evidence provided by Laura Scotton, a solicitor, and Warren Russ, a commercial agent. Scotton's affidavit confirmed Holford's address as being within a gated housing estate in Sanctuary Cove, Queensland, and his email address as troy@holfords.net. Russ's affidavit detailed multiple attempts to serve the documents on Holford at his residence, all of which were unsuccessful due to security restrictions within the estate. The court concluded that it was impracticable to effect personal service on Holford, considering the security measures in place, and that further attempts would likely be futile.

Based on the evidence presented, the court found that substituted service was warranted. It was determined that documents sent to the Sanctuary Cove address would likely come to Holford's attention, given his residence there, and that emails sent to troy@holfords.net would also reach him, as he had used this email address recently. Therefore, the court granted the application for substituted service, allowing the documents to be served via post to the Sanctuary Cove address and by email to troy@holfords.net. The court also made orders regarding the timing of the service and reserved the costs of the application for later determination.

Orders

Orders of the court

1. Personal service of the service of the originating application, statement of claim and genuine steps statement, each filed 13 February 2018, be dispensed with.

2. Pursuant to r 10.24 of the Federal Court Rules 2011, service of the originating application filed 13 February 2018, the statement of claim filed 13 February 2018, the genuine steps statement filed 13 February 2018 and this order may be effected by:

(a) posting the documents addressed to the first defendant by pre-paid express post to 2090 The Circle, Sanctuary Cove, Queensland, 4212; and

(b) transmitting the documents as attachments to an email to troy@holfords.net addressed to the first defendant.

3. The documents referred to in order 2 will be taken to be served seven days after the applicant completing the steps in order 2.

4. Costs of the application be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Rule 10.24 provides:If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order: (a) substituting another method of service; or (b)specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or (c) specifying that the document is taken to have been served: (i) on the happening of a specified event; or (ii) at the end of a specified time. Evidence in support of application The evidence in support of the application comprises an affidavit of Laura Scotton, solicitor, sworn 21 May 2018 and an affidavit of attempted service from Warren Russ, commercial agent, sworn 26 April 2018. Ms Scotton’s evidence shows that:(1)Mr Holford is the owner of a property located at 2090 The Circle, Sanctuary Cove, Queensland (“the Sanctuary Cove address”).(2)Mr Holford’s address in ASIC records is the Sanctuary Cove address.(3)Mr Holford is the director and shareholder of Holford Properties Pty Ltd. The company’s principal place of business is the Sanctuary Cove address.(4)On 23 and 26 February 2018, Mr Holford sent emails to Kelvin Ng of Ernst & Young from troy@holfords.net. Mr Russ gave evidence of his attempts to serve documents on Mr Holford. Mr Russ first attended the Sanctuary Cove address on 8 March 2018 at 8.30 pm, and noted the address to be within a secure gated housing estate. Mr Russ was told by a male security guard that Mr Holford was in France until the end of the month. Mr Russ and the security guard had a conversation to the following effect:Security guard: Mr Holford has asked what this matter is regarding.Russ: The Bcode matter.Security guard: Ok, Mr Holford said you can go to his residence and leave anything you have with his son who is at his address.Russ: I have to see Mr Holford personally, I won't require access to the residence this evening, however, can I confirm the address I have is Mr Holford’s correct address?Security guard: Yes. Mr Russ also gave evidence that, on 16 April 2018 at 7.20 pm, he re-attended the Sanctuary Cove address and spoke with a male security guard via intercom and asked for access to Mr Holford’s address. According to Mr Russ, the security guard attempted to make contact with Mr Holford via his mobile phone number listed with security for the residence, but received no answer. On 18 April 2018 at 7.05 pm, Mr Russ returned to the Sanctuary Cove address and spoke to a man, who appeared to be a security guard, on an intercom system and asked: “Would you call Mr Holford’s address being 2090 The Circle?”. The guard came back after a short time and told Mr Russ that he had spoken to a female at the residence, who said that Mr Holford was still overseas and terminated the call. Mr Russ asked the guard to call the woman back because he had authorisation to leave the documents with a resident at the address. The guard called back and told Mr Russ there was now no answer at the premises.

Decision

Reasons for decision

It is also likely that documents sent to the email address troy@holfords.net will come to Mr Holford’s attention because he has used that email address in the recent past.Conclusion Being satisfied of these matters, I will make orders for substituted service of the originating application filed 13 February 2018, the statement of claim filed 13 February 2018, the genuine steps statement filed 13 February 2018 and this order on Mr Holford via post and email.

Ratio Decidendi

Legal Principle Established

It is not necessary for the applicant to prove that it is impossible to effect personal service, or that it would be futile to attempt to do so, before an order for substituted service can be made: Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603 at [66].Consideration I am satisfied that it is impracticable to effect personal service on Mr Holford since he resides in a secure housing estate where access is only permitted by security guards authorised by a resident. Mr Russ has made four unsuccessful attempts to effect service at that address. The evidence does not suggest that further attempts to effect personal service at the Sanctuary Cove address are likely to be successful. However, it seems likely that documents sent to the Sanctuary Cove address will come to Mr Holford’s attention because the evidence strongly suggests that he ordinarily resides at the address, albeit he may have been overseas for portions of March and April 2018. It is also likely that documents sent to the email address troy@holfords.net will come to Mr Holford’s attention because he has used that email address in the recent past.Conclusion Being satisfied of these matters, I will make orders for substituted service of the originating application filed 13 February 2018, the statement of claim filed 13 February 2018, the genuine steps statement filed 13 February 2018 and this order on Mr Holford via post and email.