Kandola v Holliday-Smith

[2022] FCA 968

FEDERAL COURT OF AUSTRALIA

Kandola v Holliday-Smith [2022] FCA 968

File number(s):	NSD 163 of 2022
Judgment of:	CHEESEMAN J
Date of judgment:	19 August 2022
Catchwords:	PRACTICE AND PROCEDURE – where applicants seek orders for substituted service and deemed service on fourth respondent – Held: orders for substituted service and deemed service made
Legislation:	Federal Court Rules 2011 (Cth) rr 10.23(b), 10.24
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	4
Date of hearing:	Determined on the papers

ORDERS

NSD 163 of 2022

BETWEEN:

TEJINDER SINGH KANDOLA

First Applicant

UNICORN AIR CONDITIONING & REFRIGERATION PTY LTD

Second Applicant

AND:

JOHN ALEXANDER HOLLIDAY-SMITH

Third Respondent

GOCE GEORGE SEKULOSKI

Fourth Respondent

ORDER MADE BY:	CHEESEMAN J
DATE OF ORDER:	19 AUGUST 2022

THE COURT ORDERS THAT:

1.Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the following documents:

(a)originating application filed 10 March 2022;

(b)statement of claim filed 10 March 2022; and

(c)applicants’ genuine steps statement filed 10 March 2022.

(together, the Documents) be served on the fourth respondent by sending the Documents by registered post to his attention at Raytek Pty Ltd at 95 Park Road, Hunters Hill New South Wales 2110 and by short message service (SMS) to 0450 592 832.

2.Pursuant to r 10.23(b) of the Rules, the Documents be taken to have been served on the fourth respondent on 18 May 2022.

3.Within 7 days of these orders, the applicants are to send a copy of these orders to the fourth respondent by the means identified in order 1.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

1. The applicants, in their interlocutory application dated 10 August 2022, seek an order pursuant to r 10.24 of the Federal Court Rules 2011 (Cth) for substituted service of the originating application filed 10 March 2022 on the fourth respondent, Mr Goce George Sekuloski. The substituted service is proposed to be by way of registered postal mail and short message service (SMS).

2. An affidavit of Ms Rachel Kandola, director of Unicorn Air Conditioning & Refrigeration Pty Ltd, the second applicant, affirmed 15 August 2022 is relied on in support of the interlocutory application (supporting affidavit).

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 affidavit, I am satisfied that it is appropriate to make orders permitting substituted service of the originating application, the statement of claim and applicants’ genuine steps statement (the Documents) on the fourth respondent by sending the Documents by registered post to the attention of the fourth respondent at the registered address of a company of which the fourth respondent is a director, and by short message service to a mobile phone number used by the fourth respondent.

4. The applicants also seek an order for deemed service on the fourth respondent, pursuant to r 10.23(b) of the Rules. In doing so they rely on the steps taken by them to bring the Documents to the attention of the fourth respondent by a variety of means, including by sending the Documents by registered post to the address of the company referred to at [3]. The evidence demonstrates that the Documents were delivered by registered post on 18 May 2022. In the circumstances, I am satisfied having regard to the requirements of r 10.23(b) of the Rules that the Documents be taken to have been served on the fourth respondent on 18 May 2022.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

Associate:

Dated:       19 August 2022