Condon (liquidator) v Hope, in the matter of Mount Yenga Contracting Pty Limited (In Liquidation)

[2024] FCA 267

FEDERAL COURT OF AUSTRALIA

Condon (liquidator) v Hope, in the matter of Mount Yenga Contracting Pty Limited (In Liquidation) [2024] FCA 267   

File number:	NSD 1177 of 2023
Judgment of:	CHEESEMAN J
Date of judgment:	21 March 2024
Catchwords:	PRACTICE AND PROCEDURE – where plaintiffs seek orders for substituted service on defendant – Held: orders for substituted service made
Legislation:	Federal Court Rules 2011 (Cth) r 10.24
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	10
Date of hearing:	Determined on the papers
Solicitor for the plaintiffs:	SLF Lawyers

 

ORDERS

NSD 1177 of 2023

IN THE MATTER OF MOUNT YENGA CONTRACTING PTY LIMITED (IN LIQUIDATION)

BETWEEN:

SCHON GREGORY CONDON IN HIS CAPACITY AS LIQUIDATOR OF MOUNT YENGA CONTRACTING PTY LTD ACN 163 623 461

First Plaintiff

MOUNT YENGA CONTRACTING PTY LTD ACN 163623461

Second Plaintiff

AND:

MICHAEL ANDREW HOPE

Defendant

ORDER MADE BY:	CHEESEMAN J
DATE OF ORDER:	21 MARCH 2024

THE COURT ORDERS THAT:

1.The plaintiffs be granted leave to serve the Originating Process and Statement of Claim (SOC) dated 16 October 2023 on the Defendant by:

(a)leaving a copy of the Process, the SOC, the orders dated 18 March 2024 and these orders (together, the Substituted Service Documents) marked for the attention of the defendant with an employee at Hope Estate located at 2213 Broke Road, Pokolbin NSW 2320;

(b)leaving a copy of the Substituted Service Documents marked for the attention of the defendant with Aubrey Brown Lawyers located at 3/8 Reliance Drive, Tuggerah NSW 2259 (Attn: Sharnie Leith/Claudia Veitch);

(c)leaving a copy of the Substituted Service Documents marked for the attention of the defendant with Levy Warren Associates, Level 1, 56 Clarence Street Sydney NSW; and

(d)sending a copy of the Substituted Service Documents to the email addresses [e-mail] and [e-mail]

2.These orders be entered forthwith.

REASONS FOR JUDGMENT

CHEESEMAN J

INTRODUCTION

1. By interlocutory application dated 20 March 2024, the plaintiffs seek orders for substituted service of the Originating Process and Statement of Claim (SOC) on the defendant, Michael Hope, pursuant to r 10.24 of the Federal Court Rules 2011 (Cth). The plaintiffs consent to this application being determined on the papers.

2. The plaintiffs rely on an affidavit of Luke Cai, solicitor for the plaintiffs, affirmed on 20 March 2024 which annexes, inter alia, an affidavit of Frank Hoare, licensed process server, sworn on 5 January 2024.  

3. Having regard to the terms of r 10.24 of the Rules and on the basis of the matters deposed to in the supporting affidavits, I am satisfied that the plaintiffs have made reasonable attempts on multiple occasions to serve Mr Hope but have failed to effect service and that it is appropriate to make orders permitting substituted service of the Process and the SOC on Mr Hope by:

   (1)leaving a copy of the Process, SOC and the orders I will make for substituted service:

   (a)with an employee at Hope Estate located at 2213 Broke Road, Pokolbin NSW 2320;

   (b)with Aubrey Brown Lawyers located at 3/8 Reliance Drive, Tuggerah NSW 2259 addressed to the attention of Sharnie Leith/Claudia Veitch;

   (c)with Levy Warren Associates, Level 1, 56 Clarence Street Sydney NSW; and

   (2)sending a copy of the Process, SOC and the orders I will make for substituted service to [e-mail] and [e-mail].

4. In the circumstances I am satisfied that it is not practicable to serve Mr Hope with the relevant documents in the way required by the Rules.

5. The connection between Mr Hope and the means of substituted service advanced by the plaintiffs is as follows.

6. Mr Hope is the sole director and secretary of the second plaintiff, Mount Yenga Contracting Pty Ltd (In Liquidation). The first plaintiff is the current liquidator of Mount Yenga. The address of Hope Estate is Mr Hope’s address listed on an ASIC search extract for Mount Yenga.

7. Mr Hope was previously represented by Aubrey Brown Lawyers but they do not currently hold any instructions to accept service of documents in this proceeding.

8. The registered office listed on the ASIC search for Mount Yenga is Levy Warren Associates. The orders are framed by reference to what is understood to be the current address of Levy Warren Associates.

9. The nominated email addresses are understood to be Mr Hope’s email and an email address provided by an employee of Hope Estate.

10. I accept that the substituted service documents delivered by these methods and marked to the attention of Mr Hope are likely to come to Mr Hope’s attention. Accordingly, I will make orders in the terms sought by the plaintiffs. In addition, I will order that the plaintiffs also serve a copy of the orders made on 18 March 2024 on Mr Hope at the same time and using the same methods as for the Process, SOC and substituted service orders.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

Associate:

Dated:       21 March 2024