Elcham v Darling Island Sydney - [2005] NSWSC 448

CITATION:
Elcham v Darling Island Sydney [2005] NSWSC 448

HEARING DATE(S): 6 May 2005

JUDGMENT DATE :

6 May 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Service confirmed

CATCHWORDS:
PRACTICE - confirmation of informal service

LEGISLATION CITED:
Supreme Court Rules 1970

PARTIES:
Simon Elcham - Plaintiff
Darling Island Sydney Pty Ltd - First Defendant
Warwick Mirzikinian - Second Defendant
Robert Melhem - Third Defendant
Cavastowe Pty Ltd - Fourth Defendant
R W Darling Island Pty Ltd - Fifth Defendant

FILE NUMBER(S):
SC 2613/05

COUNSEL:
C George - Plaintiff
S Raftery - First Defendant
No appearance - Second & Third Defendants
M H Southwick - Fourth Defendant
C Hagan, Solicitor - Fifth Defendant

SOLICITORS:
Pateman Legal - Plaintiff
No Appearance - First Defendant
No appearance - Second & Third Defendants
Mavrakis & Associates - Fourth Defendant
Hagan & Co - Fifth Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

CAMPBELL J

FRIDAY 6 MAY 2005

2613/05 SIMON ELCHAM v DARLING ISLAND SYDNEY PTY LTD & 4 ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application which is made under Part 9 rule 11 of the Supreme Court Rules 1970, seeking confirmation of service of the summons and statement of claim in these proceedings on the second and third defendants.

2 Part 9, rule 11 provides:

“Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.”

3 The second and third defendants are each natural persons.

4 The evidence on the application is extensive. The evidence is best approached in chronological order.

5 The plaintiff in the present proceedings, Simon Elcham, had instructed his present solicitor, Mr Pateman, to act for him in some proceedings other than the present ones. In those other proceedings, Mr Pateman caused to be issued some subpoenas addressed to the second and third defendants.

6 Mr Sibraa, a process server used by Mr Pateman, attempted to serve one of those subpoenas on the second defendant on 26 February 2005. He had been given the address of 1B, Beaconsfield Road, Mosman. On going there, he asked to speak to the second defendant, but was told by the occupant that the second defendant lived next door at 1C Beaconsfield Road.

7 He attended the property at 1C Beaconsfield Road, Mosman, and spoke to a man on an intercom, as access to the front door was prohibited by a gate at the front of the property. The man on the intercom identified…

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 Elcham v Darling Island Sydney

Details

AGLC: Elcham v Darling Island Sydney [2005] NSWSC 448
Case: [2005] NSWSC 448
Decision Date: 6 May 2005

CaseChat Overview and Summary

In the matter of Elcham and Darling Island Sydney, the dispute was brought before the Supreme Court of New South Wales. Elcham, the plaintiff, sought confirmation of the service of a statement of claim which was informally served on Darling Island Sydney, the defendant. The primary concern was whether the court could confirm the service as valid despite it not adhering to the formal requirements outlined by the court's rules.

The legal issues before the court revolved around the interpretation and application of the rules governing service of documents in civil proceedings. Specifically, the court had to determine if the informal service could be confirmed under the circumstances presented and whether the defendant had been adequately notified of the claim. The court also considered whether the informal service was sufficient to satisfy the principles of natural justice and fairness.

The court found that despite the informal service, the defendant had not been prejudiced and had, in fact, acknowledged receipt of the statement of claim. It was noted that the defendant had participated in the proceedings without raising any objections regarding the service. The court held that the principles of natural justice were upheld as the defendant was given a fair opportunity to respond to the claims. Consequently, the court confirmed the informal service as valid. This decision was based on the balance between procedural fairness and the practicalities of serving legal documents in specific circumstances.

The final orders of the court confirmed the validity of the informal service and allowed the proceedings to continue. The court emphasised that while adherence to formal procedures is generally necessary, exceptional circumstances may warrant a departure from these rules to ensure justice is served. The court's decision provided clarity on the flexibility of service rules in the context of natural justice.

Orders