Burwood Council v Wanless

[2013] NSWLEC 160

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burwood Council v Wanless [2013] NSWLEC 160

Hearing dates:

20 September 2013

Decision date:

20 September 2013

Jurisdiction:

Class 4

Before:

Biscoe J

Decision:

(1) Orders as sought in the applicant's notice of motion relating to substituted service filed on 20 September 2013.

(2) Direct that the notice of motion for contempt filed on 22 August 2013 be listed for directions at 9.15 am on 11 October 2013 before the List Judge.

Catchwords:

SERVICE- orders for substituted service.

Legislation Cited:

Uniform Civil Procedure Rules 2005 rr 18.2(2)(c), 10.14, 10.26

Category:

Procedural and other rulings

Parties:

Burwood Council (Applicant)
Susan Wanless (Respondent)

Representation:

COUNSEL:
C Middleton, solicitor (Applicant)
N/A (Respondent)
SOLICITORS:
Houston Dearn O'Connor

File Number(s):

40831/11

EX TEMPORE Judgment

1. This is a notice of motion by the applicant, Burwood Council, for substituted service of a contempt notice of motion on the respondent, Susan Wanless. The latter seeks orders that the respondent is guilty of contempt of court or disobeying or otherwise failing to comply with Order 4 of the Court's orders made in these proceedings on 14 December 2011, and that the respondent be punished by way of conviction and fined for contempt of court for disobeying or otherwise failing to comply with that order.

1. The notice of motion for substituted service is supported by the affidavits of Thomas Pfeifle of 12 September 2013 and Carolyn Middleton of 13 September 2013. Mr Pfeifle is a process server who attended the property at which the respondent resides at 22 Austin Avenue, Croydon on seven occasions in order to serve the respondent with the Court documents, but service could not be effected. In the circumstances set out in those affidavits, in my view orders for substituted service should be made.

1. Accordingly, I make the orders sought in the applicant's notice of motion filed on 20 September 2013 as follows:

(1) Pursuant to r 18.2(2)(c) of the Uniform Civil Procedure Rules 2005 (UCPR) service of this notice of motion is dispensed with.

(2) Pursuant to UCPR Rule 10.14 and 10.26, in lieu of personal service, service of the notice of motion filed 22 August 2013 on Susan Wanless be effected by:

(a)   Placing the notice of motion, statement of charge and supporting affidavits of Martin Jenner (sworn 20 August 2013), Anthony Henderson (sworn 20 August 2013) and David Morley (sworn 20 August 2013) in the mail box for the premises at 22 Austin Avenue, Croydon ("the subject premises"); and

(b)   Within 24 hours after doing so, by posting a notice to the subject premises, addressed to Miss Susan Wanless, informing her of the fact that the said documents have been so placed.

(3)   Service will be deemed to have been effected 7 days after compliance with Order 2.

(4)   A copy of this order must be served with the notice of motion, statement of charge and supporting affidavits.

1. I also direct that the notice of motion for contempt filed on 22 August 2013 be listed for directions at 9.15 am on 11 October 2013 before the List Judge.