Burkitt v Ultimate Car Rentals Australia Pty Ltd

[2017] NSWDC 445

District Court

New South Wales

Medium Neutral Citation:	Burkitt v Ultimate Car Rentals Australia Pty Ltd [2017] NSWDC 445
Hearing dates:	31 January 2017
Date of orders:	31 January 2017
Decision date:	31 January 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Plaintiff's application for an adjournment granted. (2)   Stand over the plaintiff's notice of motion filed 22 December 16 for further hearing on Thursday, 2 February 2017 at 2pm part heard before P Taylor SC DCJ. (3)   Reserve the costs of today.
Catchwords:	CIVIL PROCEDURE — service — substituted service – affidavit by the applicant – applicant’s knowledge – affidavit by solicitor insufficient
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 10.14
Category:	Procedural and other rulings
Parties:	Miles Burkitt – plaintiff Ultimate Car Rentals Australia Pty Ltd – first defendant Fotis Zervas – second defendant Michael Amro – third defendant
Representation:	Counsel: Mr M Kalyk - plaintiff   Solicitors: Hicksons - plaintiff
File Number(s):	2016/194972
Publication restriction:	None

Judgment

1. The plaintiff, Miles Burkitt, applies for an order for substituted service in respect of Michael Amro, the third defendant, who is alleged to be the driver of Mr Burkitt's Ferrari motor vehicle when it was damaged.

2. There was evidence of attempts to serve Mr Amro.  That evidence does not compel the view that Mr Amro has been made aware of the proceedings, but that conclusion is certainly arguable. For reasons that follow, I propose to refrain from making a final determination on that matter at this stage.

3. Uniform Civil Procedure Rule 10.14(3A) provides:

“(3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes:

(a) a statement as to the applicant’s knowledge of the whereabouts of the person to be served, and

(b) 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 electronic mail).”

4. Subrule (3A) appears to impose a mandatory requirement for an "affidavit by the applicant", and that such an affidavit must address "the applicant's knowledge of the whereabouts of the person” in respect of whom substituted service is sought.

5. The applicant has not sworn such an affidavit, or at least none has been filed or read on this application. The applicant submitted that the requirement imposed by subr (3A) was satisfied by an affidavit of the applicant's solicitor, which relevantly stated at [23], “I am instructed and I verily believe that the Victoria Police informed our client that the third defendant currently resides at [address given]".

6. Although that paragraph does give some information about the client applicant's knowledge, I am not satisfied that that statement by the solicitor of the applicant is sufficient to satisfy the requirements imposed by subr (3A).

7. The applicant submitted that subr (3A) should not be applied strictly. I accept that there must be some flexibility with the term "affidavit by the applicant", especially in circumstances where the applicant is a corporation. In that event, the corporation’s affidavit would be required from a director or some other person who fairly represents the governing mind of the corporation. Whether the applicant be a person or a corporation, the requirement of para (a) and perhaps to a lesser extent para (b) in subr (3A) indicates that it should be given by someone who can speak personally of the "applicant's knowledge".

8. Faced with this recently imposed requirement, the applicant, by his counsel, sought to adjourn the application for substituted service to obtain an affidavit satisfying subr (3A). I do not see any reason why the adjournment should not be granted.  It may be that some limitation on the costs of the application should ultimately be made, but that is a matter to be considered once the application has been determined.

9. Accordingly, the orders of the Court are:

1. Plaintiff's application for an adjournment granted.

2. Stand over the plaintiff's notice of motion filed 22 December 16 for further hearing on Thursday, 2 February 2017 at 2pm part heard before P Taylor SC DCJ.

3. Reserve the costs of today.

**********

Decision last updated: 05 November 2018