Ex Parte
[2024] WASC 483
•17 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: EX PARTE NORWEST GROUP LOGISTICS PTY LTD [2024] WASC 483
CORAM: HOWARD J
HEARD: ON THE PAPERS
DELIVERED : 17 DECEMBER 2024
FILE NO/S: CIV 1293 of 2024
EX PARTE
NORWEST GROUP LOGISTICS PTY LTD
Plaintiff by ex parte
AND
BUYAKE INVESTMENTS LTD
First Defendant
ALAN GEORGE CYRIL MCVITTY
Second Defendant
JUSTUS ROOS
Third Defendant
Catchwords:
Practice and procedure – Writ issued with leave and served outside of Australia – Ex parte application for leave to proceed in default of appearance under O 10 r 10 of the Rules of the Supreme Court 1971 (WA) – Whether service properly effected under the Rules of the Supreme Court 1971 (WA) – Where Rules had changed between grant of leave to serve out and service
Legislation:
Rules of the Supreme Court 1971 (WA) O 10 r 10
Result:
Application granted
Representation:
Counsel:
| Plaintiff by ex parte | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff by ex parte | : | Thomson Geer - Perth |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Case referred to in decision(s):
Norwest Group Logistics Pty Ltd v Buyake Investments Ltd (Registration No 1202 2004 2635 (Zambia)) [2024] WASC 62
HOWARD J:
On 17 October 2024, the plaintiff made an application ex parte pursuant to O 10 r 10 of the Rules for leave to proceed against the first defendant (Buyake) in default of it having entered an appearance.
The application followed orders made by the Court on 12 March 2024 giving leave to issue the writ pursuant to O 5 r 9 and giving leave to serve out of jurisdiction in certain specified ways. The reasons for those orders are published as [2024] WASC 62[1] (earlier reasons).
[1] Norwest Group Logistics Pty Ltd v Buyake Investments Ltd (Registration No 1202 2004 2635 (Zambia)) [2024] WASC 62.
These reasons should be read with the earlier reasons. I have tried not to repeat matters from the earlier reasons here.
Since the Orders of 12 March 2024, the Rules on leave to serve out of the jurisdiction changed with effect from 9 April 2024.
Because this application is, necessarily, made ex parte and because of the changed Rules, I thought the reasons for granting the plaintiff leave to proceed should be recorded.
The plaintiff's application to proceed is supported by affidavits of:
1.Bethany Anne Fielder made and filed on 17 October 2024;
2.Patrick Malipilo made on 19 June 2024 and filed on 7 November 2024; and
3.Ms Fielder made and filed on 12 December 2024.
The plaintiff also filed a minute of proposed orders on 13 December 2024.
The minute of proposed orders, read together with Ms Fielder's first affidavit, sought leave to proceed against Buyake for orders that Buyake pay the plaintiff:
1.USD 1,085,000 (the total Dead Freight,[2] invoiced on two separate dates);
2.USD 131,634 (the Origins Damages);[3]
3.Interest on such amounts at the rate of 6% per annum from the date such amounts became due, being 28 February 2023 and 3 March 2023, until the date of judgment or payment pursuant to s 32 of the Supreme Court Act 1935 (WA), totalling USD 131,260.32; and
4.the plaintiff's costs of the action to be assessed.
[2] Earlier reasons [18].
[3] Earlier reasons [22].
Order 10 r 10 provides:
10. Leave to proceed where no appearance by person
(1) If an originating process is served on a person outside Australia and the person does not enter an appearance, the party serving the document may not proceed against the person served except by leave of the Court.
(2) An application for leave under subrule (1) may be made without serving notice of the application on the person served with the originating process.
Mr Malipilo deposes to:
1.being the Assistant Registrar of the Lusaka High Court and as being employed by the judiciary of Zambia;[4]
[4] Mr Malipilo’s affidavit [2].
2.having, on 31 May 2024, personally served Buyake with the following (in CIV 2469 of 2023):
(a)writ of summons indorsed with statement of claim;
(b)originating motion filed 22 December 2023;
(c)Court's orders made on 12 March 2024;
(d)Affidavit of Jessica Sara Chapman made 22 December 2023; and
(e)Affidavit of Ms Chapman made 23 February 2024; and
3.that service was acknowledged by Alvin Sindowe who was specified to be Buyake's Chief Executive Officer.[5]
[5] Mr Malipilo’s affidavit [3].
Having regard to the affidavit of Ms Chapman made 23 February and filed 26 February 2024 in CIV 2649 of 2023 and, in particular, Annexure 'JCS-17' which gave evidence as to what would be effective service as a matter of Zambian law, I am satisfied that Buyake was served in accordance with the Orders made by this Court on 12 March 2024.
The affidavit evidence filed in this matter (CIV 1293 of 2024) establishes that Mr Sindowe remains a director and shareholder in Buyake.[6]
[6] Affidavit of Ms Fielder made 12 December 2024: 'BAF-1'.
In my view, what is required by the current O 10 r 10 is that service was properly effected on the relevant defendant.
In my view, Buyake has been properly served as permitted by the 12 March 2024 Orders, and so the plaintiff has brought itself within O 10 r 10 as it currently is. That is so notwithstanding that the 12 March 2024 Orders were made under the Rules as they were before 9 April 2024.
In my view, whether or not the plaintiff complied with O 10 r 10 as it was prior to 9 April 2024 is unnecessary to consider.
For the above reasons, I will give the plaintiff leave to proceed as per its application and to enter judgment against the first defendant in default of appearance.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
17 DECEMBER 2024
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