Complete Credit Acquisitions Pty Ltd v Ong
[2018] WADC 78
•7 JUNE 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: COMPLETE CREDIT ACQUISITIONS PTY LTD -v- ONG [2018] WADC 78
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 11 MAY 2018
DELIVERED : 7 JUNE 2018
FILE NO/S: CIV 1235 of 2016
BETWEEN: COMPLETE CREDIT ACQUISITIONS PTY LTD
Plaintiff
AND
THI MY TRANG ONG
Defendant
Catchwords:
Default judgment - Setting aside for irregularity
Legislation:
Rules of the Supreme Court 1971, O 21 r 9(3), O 5 r 9
Result:
The default judgment to be set aside
Representation:
Counsel:
| Plaintiff | : | Mr R Roser |
| Defendant | : | Mr D Smart |
Solicitors:
| Plaintiff | : | Roser Lawyers |
| Defendant | : | Legal Care Australia |
Case(s) referred to in decision(s):
Laurie v Carroll (1958) 98 CLR 310
PRINCIPAL REGISTRAR MELVILLE:
By writ dated 11 April 2016, the plaintiff which described itself as Complete Credit Solutions Pty Ltd (Complete Credit Solutions), issued a writ against the defendant claiming $38,855.49 together with interest in the sum of $44,219.01 as at the date of the writ, being money allegedly due and owing by the defendant to the plaintiff pursuant to a credit card contract with the Commonwealth Bank of Australia Ltd. There was no claim for interest following the issue of the writ.
It is contended in the affidavit evidence filed on behalf of the plaintiff this alleged debt was assigned by the Commonwealth Bank to Baycorp Collections PDL (Aust) Pty Ltd (Baycorp) and then from Baycorp to Complete Credit Solutions.
On 16 February 2017, the plaintiff obtained judgment in default of the defendant's appearance in the name 'Complete Credit Acquisitions Pty Ltd' in the amount of $88,463.16 plus costs. It is not clear how judgment came to be entered in the name 'Complete Credit Acquisitions Pty Ltd'. Nor is it clear how judgment came to be entered in an amount in excess of that claimed in the writ.
By application dated 12 February 2018 the defendant applied to set aside the default judgment. The application was supported by an affidavit in which, in essence, the defendant stated that she was unaware of the proceedings against her in the District Court until 24 December 2017 (or 27 December 2017 depending upon which paragraph you refer to), that the amounts claimed against her by the plaintiff were incurred was a result of unauthorised use of the credit card (to use a neutral term) by a third party and that she was not indebted to the Commonwealth Bank. She says that upon becoming aware default judgment had been entered she immediately flew to Western Australia and instructed her solicitors.
Whilst not an issue raised by the defendant, in the course of dealing with this matter I raised a question as to whether judgment had been irregularly entered.
The circumstances of entry of judgment
By ex parte chamber summons dated 8 June 2016 the plaintiff, then described as Complete Credit Solutions applied for orders for substituted service. The application was supported by an affidavit exhibiting a report from a process server to the effect that an attempt had been made to serve the defendant by attending 77 Rawlinson Drive Marangaroo WA only to find no person home. Subsequently the process servicer was called by somebody purporting to be the defendant's sister and calling herself Tina. This person advised the process server that the defendant resided in the United States of America and had done so for some time.
Complete Credit Solutions was successful in obtaining an order for substituted service. The orders were:
1.posting a copy of this order and a copy of the writ of summons in the action by pre-paid mail addressed to Thi Trinh Ong at 77 Rawlinson Drive Marangaroo, WA 6021, with a written request that she draw the documents to the attention of the defendant, shall be good and sufficient service of the writ of summons upon the defendant;
2.a copy of this order and a copy of the Writ of Summons in the action, be emailed to Thi Trinh Ong at [email protected], with a written request that the recipient draw the documents to the attention the defendant;
3.a copy of this order and a copy of the Writ of Summons in the action, be emailed to Vinh Dam at email to [email protected], with a written request that he draw the documents to the attention of the defendant;
4.the defendant have 28 days after service pursuant to order 1 within which to file an appearance; and
5.the defendant pay the costs in the cause.
At this point it should be noted that notwithstanding the similarity in names Thi Trinh Ong is not the defendant. However it seems service was not effected under these orders because by an ex parte summons dated 18 August 2016 Complete Credit Solutions applied for orders to amend the writ of summons and for substituted service of the (proposed) amended writ of summons. In particular the plaintiff sought to amend its name from 'Complete Credit Solutions' to 'Complete Credit Acquisitions'.
By orders made 6 September 2016 it was ordered that:
1.The Plaintiff s name on the Writ of Summons dated 11 April 2016 be amended to Complete Credit Acquisitions Pty Ltd (ACN 163437358).
2.Posting a copy of this order and a copy of the amended Writ of Summons in the action by pre-paid mail addressed to Thi Trinh Ong at 77 Rawlinson Drive Marangaroo, WA 6021, with a written request that she draw the documents to the attention of the defendant, shall be good and sufficient service of the amended Writ of Summons upon the defendant;
3.Service of a copy of this order and a copy of the amended Writ of Summons in the action, upon Thi Trinh Ong, via email to [email protected], with a written request that she draw the documents to the attention of the defendant, shall be good and sufficient service of the amended Writ of Summons upon the defendant;
4.Service of a copy of this order and a copy of the amended Writ of Summons in the action, upon Vinh Dam, via email to vinhthedamgmail.com, with a written request that he draw the documents to the attention of the defendant, shall be good and sufficient service of the amended Writ of Summons upon the defendant;
5.Defendant have 28 days after service within which to file an appearance; and
6.Defendant pay the costs in the cause.
In my view, these orders properly construed, required service in terms of all three of the modes described in orders 2 - 4 to be effected before substituted service could be deemed to have been effected, otherwise there would have needed to be only one of the three orders made. However, whilst it is open to argue that any one of the three modes of service would have been sufficient and each of them are independent alternatives to the other, in the end, and for the reasons that follow, it makes no difference.
On 15 February 2017 the plaintiff under the name Complete Credit Acquisitions filed for default judgment which application was supported by an affidavit of Laura Hawke, which set out the circumstances of the attempt at service and a calculation of interest totalling $49,607.69, some $5.388.62 more than the interest claimed in the writ. Default judgment was entered in this name and for $88,463.18.
At par 3 of her affidavit Ms Hawkes said:
Pursuant to order of Deputy Registrar Kubacz dated 6 September 2016 as annexed hereto and marked 'LH-1' I caused the following documents to be sent to Thi My Trang Ong also known as Trang Ong (Defendant) at her address 77 Rawlinson Drive, Marangaroo WA 6021:
(a)Letter addressed to the defendant dated 6 October 2016;
(b)Orders before Deputy Registrar Kubacz in chambers on 6 September 2016;
(c)Orders before Registrar Kingsley in chambers on 12 July 2016; and
(d)Writ of summons (Documents).
At par 4 she said 'a copy of the documents are annexed hereto and marked LH-2'. At par 5 she said 'Annexed hereto and marked LH‑3' is a copy of an email to [email protected] and [email protected].
The letter exhibited at LH-2 is addressed to Thi My Trang Ong aka Trang Ong 77 Rawlinson Drive, Marangaroo WA 6021. It can immediately be seen that this does not comply with order number 2 made by Deputy Registrar Kubacz on 6 September 2016 which required that the letter to be sent by prepaid mail addressed to 'Thi Trinh Ong'.
Further and in my view fatally, insofar as service purported to be in compliance with the order of Deputy Registrar Kubacz, the letter failed to enclose a copy of the 'amended writ of summons'.
Furthermore, in my opinion judgment has been entered for more than the amount claimed in the indorsement of claim on the writ.
Not only is it apparent from the affidavit of service that the amended writ of summons had not been served as ordered by Deputy Registrar Kubacz, it is apparent from the court file that no amended writ of summons has been filed at all, let alone one indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the Registrar authorising the amendment and the date thereof, or the order and rule of the Rules of the Supreme Court 1971 (RSC) pursuant to which any amendment was made, as is required by RSC O 21 r 9(3).
There are further difficulties with the judgment. At the time of issuing the writ and of applying for substituted service the plaintiff was aware that the defendant resided in the United States of America. Apart from the raising of this issue by the process server who advised that he had been informed that the defendant resided in the United States of America, the affidavit of Dean Nicholls, Legal Support Officer for the Plaintiff made the 5 March 2018 filed in opposition to the application to set aside the default judgment makes it clear the presence of the defendant within the jurisdiction of the District Court of Western Australian was a live issue. At par 9 of his affidavit he stated that the defendant attended the CBA bank on 14 July 2014 and advised the bank she had been residing in the United State of America since 2006. At par 16 Mr Nicholls states that on 25 October 2014 he sent an email to Mr Dam, which he annexed as DN 11 in which he stated 'We understand she is now living overseas'.
At par 17 Mr Nicholls refers to annexure DN12 which is a transcript of the conversation on the 15 April 2015 between he and the defendant at her place of employment. It is apparent that this conversation took place with the defendant at her place of employment in the United States of America.
In my view the evidence before the plaintiff prior to it issuing the writ pointed to the defendant residing and being domiciled in the United States of America.
It is not appropriate to issue a writ for service outside of Australia without leave (RSC O 5 r 9). It is not appropriate to obtain an order for substituted service on a defendant who resides outside of Australia. In the case of Laurie v Carroll (1958) 98 CLR 310 the High Court said:
Primarily the question is one of jurisdiction. The action is in personam and it is transitory; and in such an action the jurisdiction of the Supreme Court of Victoria depends not in the least on subject matter but upon the amenability of the defendant to the writ expressing the Sovereign's command in right of the State of Victoria. The common law doctrine is that the writ does not run beyond the limits of the State.
After discussing various arguments suggesting otherwise, the High Court concluded that where before the issue of an ordinary writ of summons for service within the jurisdiction the defendant has left the jurisdiction definitely, that is to say that he has left it in such a sense that leave to issue a writ for service out of the jurisdiction might properly be given under O. XI, the Court said:
The better view appears clearly enough to be that on that hypothesis the defendant is no longer amenable to the territorial jurisdiction exercised by an ordinary writ for service within the jurisdiction and the want of jurisdiction cannot be overcome by an order for substituted service.
Putting aside the concerns about the circumstances in which the plaintiff issued the writ, obtained the order for substituted service, and any issues relating to the question of whether judgment was entered for an amount more than claimed in the endorsement on the writ, it was apparent that the writ was never amended as required by RSC O 21 r 9(3), and the amended writ was not served at all. Whatever was served was not served in accordance with the order of Deputy Registrar Kubacz.
In those circumstances I find that the judgment has been entered irregularly and it is not necessary for me to consider whether the defendant has a defence to the claim on the merits and whether her affidavit, as submitted by the plaintiff, should be regarded as containing information which is so implausible as to warrant it being disregarded.
However there appears to be an issue as to whether what was purportedly assigned to the plaintiff, which appears to be a debt of $51,613.39 from Baycorp Collections PDL (Aust) Pty Ltd to Complete Credit Solutions can justify a writ being issued for a total of $83074.56. The credit card contract between the Commonwealth Bank and the defendant has not been produced to me in this application. There is no good evidence before me that the credit card contract, which may or may not have had a provision that allowed for interest to continue to run on the debt of $38,855.49 after the account was closed, was ever assigned by the Commonwealth Bank to Baycorp. Whilst at par 5 of his affidavit Mr Dean Nichols says the contract and the debt were assigned by the Commonwealth Bank to Baycorp and then in turn to Complete Credit Solutions, annexure DN 1 which is described as a copy of the notice of assignment from Baycorp to Complete Credit Solutions refers only to the assignment of an alleged debt of $51,613.39 and makes no reference to the assignment of any contract.
I would order that judgment be set aside. I will hear from the parties as to whether I should order the defendant to within 21 days file an appearance or grant leave to the defendant to file a conditional appearance within the same time.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JC
REGISTRAR'S ASSOCIATE
7 JUNE 2018
0
1
1