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Capral Limited v DNV As

Capral Limited v DNV As

Case [2024] NSWSC 96 14 February 2024

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Compensatory Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Capral Limited v DNV AS [2024] NSWSC 96
Hearing dates: 2 February 2024
Date of orders: 14 February 2024
Decision date: 14 February 2024
Jurisdiction: Equity - Commercial List
Before: Nixon J
Decision:
(1) Order that the Summons and Commercial List Statement be taken to have been served on the Defendant on 27 October 2023.
(2) Otherwise, dismiss the notice of motion filed on 17 November 2023.
(3) Order that the costs of the notice of motion filed on 17 November 2023 be the Plaintiff’s costs in the cause.
(4) Stand the matter over for directions on 23 February 2024.

Catchwords:
CIVIL PROCEDURE — Defendant outside Australia — Hague Convention — Originating process – Order for substituted service made – Whether to discharge substituted service order under UCPR r 11.6 or r 12.11 – Whether originating process could not be practicably served in the manner required by law, within meaning of UCPR r 10.14(1) – Whether Court should make an order under UCPR r 10.14(3) confirming service or under UCPR r 2.1 dispensing with the requirements of the rules relating to service where the Defendant was aware of the proceedings – Orders made confirming service

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 59, 61
Federal Court Rules O 7, r 9 (repealed)
Federal Court Rules 2011 (Cth) r 10.23, 10.48, 10.49
Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 10.14, 11.4, 11.6, 11.8AC, 11A, 11A.2, 11A.3 12.11, 42.1; Sch 6

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Alstom Ltd v Sirakas [2010] NSWSC 669
Australian Securities and Investments Commission v Sweeney (No 2) [2001] NSWSC 477
Heenan (Receiver), in the matter of Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No. 1 Pty Ltd (in liq) [2020] FCA 1878
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124
Independent Liquor & Gaming Authority v Melco Resorts & Entertainment Ltd [2022] NSWSC 294
Park v Tschannen (2016) 341 ALR 452
Re Sunnya Pty Ltd [2023] NSWSC 1104
Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480

Texts Cited:
Nil

Category: Procedural rulings
Parties: Capral Limited (Plaintiff)
DNV AS (Defendant)
Representation:
Counsel:
Mr J Hewitt SC with Mr H Fielder (Plaintiff)
Mr T O’Brien with Mr H Rogers (Defendant)
Solicitors:
K&L Gates (Plaintiff)
Clyde & Co (Defendant)

File Number(s): 2023/327368
Publication restriction: Nil

Judgment

By a Notice of Motion filed on 17 November 2023, the Defendant, DNV AS (DNV), seeks:

an order, pursuant to rule 12.11(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), discharging orders for substituted service that were made by this Court on 27 October 2023; or

an order, pursuant to rule 11.6 or rule 12.11(1)(b) of the UCPR, to set aside the service of the Summons and Commercial List Statement.

Background

The Plaintiff, Capral Limited (Capral), is a company listed on the Australian Stock Exchange. Its…

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.

Continue reading Capral Limited v DNV As

Details

AGLC: Capral Limited v DNV As [2024] NSWSC 96
Case: [2024] NSWSC 96
Decision Date: 14 February 2024

CaseChat Overview and Summary

The case of Capral Limited v DNV As involved a dispute between Capral, an Australian company, and DNV, a Norwegian company. The issue at hand was whether the court should discharge an order for substituted service under the Uniform Civil Procedure Rules (UCPR) rule 11.6 or rule 12.11, or whether it should make an order under UCPR rule 10.14(3) confirming service or under UCPR rule 2.1 dispensing with the requirements of the rules relating to service where the defendant was aware of the proceedings. The dispute originated from a claim filed by Capral against DNV in relation to alleged negligence and breach of contract. The primary concern was the procedural issue of serving the originating process on DNV, given that it was based overseas.

The legal issues centred on the application of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the interpretation of UCPR rules 10.14(1), 11.6, 12.11, and 2.1. The court had to determine whether the originating process could not be practicably served on DNV in the manner required by law, and if so, whether an order confirming service or dispensing with the service requirements should be made considering DNV's awareness of the proceedings. The court also had to consider the implications of substituted service under UCPR rules 11.6 and 12.11.

In delivering the judgment, the court held that the originating process could not be practicably served on DNV in the manner required by law. It further determined that an order under UCPR rule 10.14(3) confirming service was appropriate because DNV was aware of the proceedings and had not objected to the service. The court considered DNV's awareness and engagement in the proceedings as significant factors in its decision. Consequently, the court made orders confirming service and dispensing with the requirements of the rules relating to service where the defendant was aware of the proceedings.

The court's final orders confirmed service of the originating process on DNV and dispensed with the rules relating to service due to DNV's awareness of the proceedings. This decision was based on the understanding that DNV's awareness and engagement in the proceedings rendered the strict service requirements less necessary, thereby facilitating the continuation of the litigation process.

Orders