Khanna v Gunesekera - [2018] NSWDC 133

District Court

New South Wales

Medium Neutral Citation: Khanna v Gunesekera & Ors [2018] NSWDC 133
Hearing dates: 23 February, 13 April, 18 and 21 May 2018
Date of orders: 25 May 2018
Decision date: 25 May 2018
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. Pursuant to UCPR r 10, the notice of motion filed by the first and second defendants on 28 June 2017 is upheld to the extent that the purported service of the plaintiffs' originating process on the first and second defendants is set aside;

2. The request by the first and second defendants that the plaintiffs’ proceedings be struck out pursuant to UCPR r 14.28 is declined;

3. The plaintiffs are to pay the costs of the first and second defendants in respect of their motion filed on 28 June 2017 on the ordinary basis unless a party can show an entitlement to some other order for costs;

4. Pursuant to s 64(1)(b) of the Civil Procedure Act 2005, leave is granted to the plaintiffs to file and serve an amended statement of claim;

5. The plaintiffs and the first and second defendants are to pay their own costs in relation to the plaintiffs' motions filed on 12 February 2018 and 23 March 2018, apart from Order (4) above, are otherwise dismissed;

6. The exhibits may be returned;
7. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: PRACTICE & PROCEDURE – whether plaintiffs have provided acceptable proof of due interstate service of originating process according to the requirements of the Service and Execution of Process Act 1992 and UCPR r 10 – whether pre-conditional jurisdictional requirements of s 47(1) of the District Court Act 1973 are satisfied – defendants’ motion to set aside service, or alternatively, to strike out plaintiffs’ proceedings as an abuse of process – plaintiffs’ motion seeking confirmation of claim of due service
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005, s 58, s 64
District Court Act 1973, s 47
Residential Tenancies Act 2010
Service and Execution of Process Act 1992 (Cwth), s 15 and s 16
Service and Execution of Process Regulations 1993 (Cwth), reg 4
Uniform Civil Procedure Rules, Pt 10
Cases Cited: Falls Creek Ski Lifts Pty Ltd v Yee (1995) 37 NSWLR 344
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
McGuirk v University of NSW [2009] NSWSC 1424
Meckliff v Simpson [1968] VR 62
Northam v Favelle Favco Holdings Pty Ltd, Bryson J, unreported, 7 March 1995, BC 9504276
Category: Procedural and other rulings
Parties: Sanjeev Khanna (First plaintiff)
Geeta Khanna (Second plaintiff)
Gerard Sumithra Abeywardane Gunesekera (First defendant)
Shalini Gunesekera (Second defendant)
Bond Realty Pty Ltd (Third defendant)
Representation:
Counsel:
Dr G O’Shea, amicus curiae, 23 February (Plaintiffs & mention for third defendant)
Plaintiffs in person on other dates
Mr D Moujalli (First and second defendants)
Solicitors:
McInnes Wilson Lawyers Canberra (First and second defendants)
Gillard Lawyers (Third defendant)

File Number(s): 2017/93196
Publication restriction:

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 Khanna v Gunesekera

Details

AGLC: Khanna v Gunesekera [2018] NSWDC 133
Case: [2018] NSWDC 133
Decision Date: 25 May 2018

CaseChat Overview and Summary

In Khanna v Gunesekera, the plaintiffs, Mr and Mrs Khanna, sought to enforce a judgment debt against the defendants, Mr and Mrs Gunesekera. The dispute centred on whether the plaintiffs had adequately demonstrated that the originating process was served on the defendants in accordance with the Service and Execution of Process Act 1992 and UCPR r 10. The defendants challenged the validity of the service and moved to set aside the service or, alternatively, to strike out the plaintiffs' proceedings as an abuse of process. The plaintiffs, in response, sought confirmation of the claim of due service.

The primary legal issue before the court was whether the plaintiffs had provided sufficient evidence of the proper service of the originating process on the defendants. Additionally, the court had to consider whether the jurisdictional requirements of s 47(1) of the District Court Act 1973 were met, and if the defendants' motion to set aside the service or strike out the proceedings should be granted. The plaintiffs also sought confirmation of their claim of due service.

The court determined that the plaintiffs had not provided acceptable proof of due service of the originating process as required by UCPR r 10. Consequently, the defendants' motion to set aside the service was upheld. However, the court declined the request to strike out the plaintiffs' proceedings, finding that there was no abuse of process. The court granted the plaintiffs leave to file and serve an amended statement of claim and ordered the plaintiffs to pay the defendants' costs associated with the motion. Both parties were ordered to bear their own costs for the subsequent motions, and the exhibits were to be returned.

The court's final orders included setting aside the service of the originating process, declining the motion to strike out the proceedings, ordering the plaintiffs to pay the defendants' costs, granting leave for an amended statement of claim, and directing each party to bear their own costs for subsequent motions. The exhibits were to be returned, and the parties were granted liberty to apply for further or other orders with seven days' notice.

Orders

Orders of the court

1. Pursuant to UCPR r 10, the notice of motion filed by the first and second defendants on 28 June 2017 is upheld to the extent that the purported service of the plaintiffs' originating process on the first and second defendants is set aside;

2. The request by the first and second defendants that the plaintiffs’ proceedings be struck out pursuant to UCPR r 14.28 is declined;

3. The plaintiffs are to pay the costs of the first and second defendants in respect of their motion filed on 28 June 2017 on the ordinary basis unless a party can show an entitlement to some other order for costs;

4. Pursuant to s 64(1)(b) of the Civil Procedure Act 2005, leave is granted to the plaintiffs to file and serve an amended statement of claim;

5. The plaintiffs and the first and second defendants are to pay their own costs in relation to the plaintiffs' motions filed on 12 February 2018 and 23 March 2018, apart from Order (4) above, are otherwise dismissed;

6. The exhibits may be returned;

7. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Khanna v Gunesekera & Ors [2018] NSWDC 133
Hearing dates:	23 February, 13 April, 18 and 21 May 2018
Date of orders:	25 May 2018
Decision date:	25 May 2018
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. Pursuant to UCPR r 10, the notice of motion filed by the first and second defendants on 28 June 2017 is upheld to the extent that the purported service of the plaintiffs' originating process on the first and second defendants is set aside; 2. The request by the first and second defendants that the plaintiffs’ proceedings be struck out pursuant to UCPR r 14.28 is declined; 3. The plaintiffs are to pay the costs of the first and second defendants in respect of their motion filed on 28 June 2017 on the ordinary basis unless a party can show an entitlement to some other order for costs; 4. Pursuant to s 64(1)(b) of the Civil Procedure Act 2005, leave is granted to the plaintiffs to file and serve an amended statement of claim; 5. The plaintiffs and the first and second defendants are to pay their own costs in relation to the plaintiffs' motions filed on 12 February 2018 and 23 March 2018, apart from Order (4) above, are otherwise dismissed; 6. The exhibits may be returned; 7. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	PRACTICE & PROCEDURE – whether plaintiffs have provided acceptable proof of due interstate service of originating process according to the requirements of the Service and Execution of Process Act 1992 and UCPR r 10 – whether pre-conditional jurisdictional requirements of s 47(1) of the District Court Act 1973 are satisfied – defendants’ motion to set aside service, or alternatively, to strike out plaintiffs’ proceedings as an abuse of process – plaintiffs’ motion seeking confirmation of claim of due service
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005, s 58, s 64 District Court Act 1973, s 47 Residential Tenancies Act 2010 Service and Execution of Process Act 1992 (Cwth), s 15 and s 16 Service and Execution of Process Regulations 1993 (Cwth), reg 4 Uniform Civil Procedure Rules, Pt 10
Cases Cited:	Falls Creek Ski Lifts Pty Ltd v Yee (1995) 37 NSWLR 344 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 McGuirk v University of NSW [2009] NSWSC 1424 Meckliff v Simpson [1968] VR 62 Northam v Favelle Favco Holdings Pty Ltd, Bryson J, unreported, 7 March 1995, BC 9504276
Category:	Procedural and other rulings
Parties:	Sanjeev Khanna (First plaintiff) Geeta Khanna (Second plaintiff) Gerard Sumithra Abeywardane Gunesekera (First defendant) Shalini Gunesekera (Second defendant) Bond Realty Pty Ltd (Third defendant)
Representation:	Counsel: Dr G O’Shea, amicus curiae, 23 February (Plaintiffs & mention for third defendant) Plaintiffs in person on other dates Mr D Moujalli (First and second defendants) Solicitors: McInnes Wilson Lawyers Canberra (First and second defendants) Gillard Lawyers (Third defendant)
File Number(s):	2017/93196
Publication restriction: