Benlee Holdings Ltd v Giorgi Fashion Group Pty Ltd

[1995] FCA 49

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA       )
NEW SOUTH WALES DISTRICT REGISTRY     )    No. QG 63 of 1994
GENERAL DIVISION   )

BETWEEN:

BENLEE HOLDINGS LIMITED
  Applicant

AND:

GIORGI FASHION GROUP PTY LIMITED
  First Respondent

RICHARD ANDREW PRELEA

Second Respondent

DAVID ROSEN
  Third Respondent

CORAM:    SACKVILLE J.
PLACE:    SYDNEY
DATE:     16 FEBRUARY 1995

REASONS FOR JUDGMENT

HIS HONOUR:   In this matter Mr Ringrose, who appears for the applicant, proceeds by way of an amended notice of motion which has been filed in court this morning.  That notice of motion in effect seeks orders for substituted service upon the second respondent in the proceedings, Richard Andrew Prelea. The application is made pursuant to Order 7 Rule 9 of the Federal Court Rules.  The order that is now sought is that a sealed copy of the application and of the statement of claim be served upon the second respondent by service upon the address of Ida Spindler of 495 Old South Head Road, Rose Bay and also by serving copies
of those documents upon the address of David Scaysbrook at the office of NRG Australia Ltd, Level 37, Riverside Centre, 123 Eagle Street, Brisbane.  There is evidence that Ms Spindler is the grandmother of the second respondent and that Mr Scaysbrook is his brother-in-law.

The matter has been stood over on previous occasions.  At an earlier hearing I was not satisfied that an order for substituted service, requiring copies of the documents to be served upon Mr Scaysbrook, would satisfy the requirements of the rules that steps should be taken for the purpose of bringing the document to the notice of the person to be served.  My concern was that on the evidence there was nothing to indicate that Mr Scaysbrook, although he may have been related by marriage to Mr Prelea, was in contact with Mr Prelea and therefore likely to bring the document served to his attention.

Mr Ringrose today has adduced additional evidence.  The substance of that evidence is that it has been ascertained that Ms Spindler is the grandmother of the second respondent.  Contact has been made with Ms Spindler on two occasions, with requests to her that Richard Prelea make contact at particular telephone numbers.

The result of these contacts with Ms Spindler has been that, on two separate occasions, telephone calls were received on the telephone numbers provided, from a person identifying himself as Andrew Prelea.  In the course of the earlier conversation, which took place in December 1994, that person indicated that he was not interested in receiving deliveries of documents without knowing what they were.  In the second conversation, which took place on 18 January 1995, the person identifying himself as Andrew Prelea indicated that he was about to go overseas in a few hours and that he was unwilling to supply an address where service of court documents could be effected.

In my opinion there are still some deficiencies in the documentation.  It would have been better, as I have indicated to Mr Ringrose, had inquiries been made of an address in Double Bay recorded in the electoral roll for 1990-1994 as the address for the second respondent.  However, there is evidence that that property was transferred in 1991 from a company associated with the Prelea family to apparently unconnected third parties.  There is also evidence that the second respondent told Mr Chechik that in 1994 the second respondent lived at Cambridge Street, Paddington and that he was intending to move to a different address.  Inquiries have been made at each of those addresses without Mr Prelea being located. 

In the circumstances I think that the evidence is sufficient to show that it is "impractical" within the meaning of the rule to serve the documents in the manner contemplated by the rules.  Accordingly, I think it appropriate to make an order for substituted service.  The evidence suggests that if documents are provided or served at Ms Spindler's address in Rose Bay there is a reasonable likelihood that they will be brought to the notice of the second respondent as the person to be served. I have indicated and I repeat that I have some concern about documents being provided to a lady who on the evidence appears to be in her eighties.  It is therefore important that the service of the documents in accordance with the court's orders be handled in a sensitive and appropriate manner, having regard to the age of Ms Spindler, who, after all, has no personal involvement in these proceedings.  I have indicated my concern on these matters to Mr Ringrose.  I propose to make no formal directions but to request Mr Ringrose to bring the matter to the attention of those instructing him and he has indicated that that will be done. 

For the reasons I have given I propose to make the orders in paragraphs 1, 2(a) and (b), and 4 of the notice of motion which has been filed in court this morning.  I have included service upon the address of Mr Scaysbrook as well as upon Ms Spindler, since that may have the effect of increasing the chances of the matter coming to the attention of the second respondent. 

I direct that service upon the second respondent in accordance with the orders already made be effected on or before 9 March 1995, which is 21 days from today's date and I will list the matter for further directions on Thursday, 23 March 1995.

I do not, at this stage, propose to make an order that the second respondent pay the costs of the application. At this stage one does not know what explanation, if any, is to be given by the second respondent for the apparent difficulty in serving him.  
I think it appropriate that at some stage in the proceedings the second respondent have an opportunity to put forward such an explanation.  At that point the question of costs of this application can be dealt with.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 16 February, 1995

Heard:16 February, 1995

Place:            Sydney

Decision:16 February, 1995

Appearances:      Mr J. Ringrose instructed by Parry Carrroll Kanjian Solicitors appeared for the applicant.

The first, second and third respondents did not appear.