Marina Bay Sands Pte Ltd (Singapore UEN No. 200507292R) v Zhi Cai Wang

[2018] NSWSC 934

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Marina Bay Sands Pte Ltd (Singapore UEN No. 200507292R) v Zhi Cai Wang [2018] NSWSC 934

Hearing dates:

20 June 2018

Date of orders:

20 June 2018

Decision date:

20 June 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. An order pursuant to r 49.19 Uniform Civil Procedure Rules 2005 (NSW) that the order made by Deputy Assistant Registrar Gerritsen on 2 May 2018 in this proceeding be wholly discharged.

 

2. An order pursuant to r 10.14 UCPR that the plaintiff be taken to have effected personal service of the notice of registration of a foreign judgment exhibited at pages 1 to 14 of RWM-1 to the affidavit of Ross Whyte McClymont sworn 7 February 2018 (Notice of Registration) on the defendant by:

 

(a) sending a copy of the Notice of Registration and a sealed copy of any orders contained by the plaintiff pursuant to this Notice of Motion (Substituted Service Orders) to Unit 202, 88 Kirribilli Ave, Kirribilli NSW 2061 (Kirribilli Address) by ordinary pre-paid post addressed to the defendant at the Kirribilli Address;

 

(b) sending a copy of the Notice of Registration and the Substituted Service Orders to TMG International Design Pty Ltd c/- Cameron Duncan, CIB Accountants & Advisers 'Blaxland House', Suite 6, 5 Ross St, Parramatta, NSW 2150 (Parramatta Address) by ordinary pre-paid post addressed to the defendant at the Parramatta Address; and

 

(c) sending a copy of the Notice of Registration and the Substituted Service Orders to the following email address: [email protected].

 

3. An order that service of the Notice of Registration on the defendant be taken to have been effected on the last date that the Notice of Registration and the Substituted Service Orders are served in accordance with order 2 above.

 4. An order that the defendant pay the plaintiff's costs of this Notice of Motion.

Catchwords:

CIVIL PROCEDURE – service – substituted service – whether document cannot practicably be served

  CIVIL PROCEDURE – registrars – review of registrar’s decision

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 10.14, 49.19

Cases Cited:

Tomko v Palasty (No 2) [2007] 71 NSWLR 61, [2007] NSWCA 369

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Marina Bay Sands Pte Ltd (Singapore UEN No. 200507292R) – (Ex parte)

Representation:

Counsel:
M L Rose (Plaintiff)

  Solicitors:
Ashurst Australia (Plaintiff)

File Number(s):

2017/248316

Publication restriction:

Nil

Judgment

1. This is an application under r 49.19 Uniform Civil Procedure Rules 2005 (NSW) to review a decision of Deputy Assistant Registrar Gerritsen on 2 May 2018. The decision concerned an application by the plaintiff for substituted service of a judgment registered in this Court from the High Court of the Republic of Singapore. The judgment was registered in this Court on 11 September 2017.

2. The affidavit of Ross White McClymont sworn 29 May 2018 details the attempts that have been made to serve a copy of the judgment on the defendant. In the credit application which gave rise to the judgment in Singapore the defendant identified his address as being 1A Waratah Road, Roseville, New South Wales. A number of searches and enquiries have identified that no such address exists. There is a Waratah Street in Roseville but no number 1A in that street.

3. Other searches have ascertained that the defendant is the registered proprietor of a strata unit at 202/88 Kirribilli Avenue, Kirribilli, New South Wales. Quite a number of attempts have been made to serve the judgment at that address, but without any success.

4. The defendant is a director of a company called TMG International Design Pty Ltd, and is a 100% shareholder in that company. The records of ASIC disclose that the registered office of the company is at the office of some accountants, CIB Accountants & Advisers, at Blaxland House Suite 6, 5 Ross Street, Parramatta. Attempts to serve the defendant at that address have not been successful, but it has been confirmed on a number of occasions to process servers that that office is the registered office of TMG and that Mr Wang and business associates are known by persons at that office.

5. The ASIC search also discloses that TMG's principal place of business is 16 Birmingham Avenue, Villawood, New South Wales. A number of attempts have been made to serve Mr Wang at the Villawood address. On 23 November and 5 December 2017 a process server attended at those premises and spoke to a female employee. On one occasion he asked if Mr Wang worked there, and on another occasion he asked whether Mr Wang was in. The answers given on both occasions were, "Wang is not here". On the second occasion, when the employee was asked if she knew when Mr Wang would be in next, she said “no”.    It was only on the third occasion, later in December 2017, when an enquiry was made about Mr Wang, that a male employee indicated that he had never heard of Mr Wang, and that TMG International Design Pty Ltd did not operate from that address. Rather, a company called Toy Vision did so. This evidence suggests that TMG and Mr Wang were known earlier to have been at the Villawood address but not any longer.

6. Searches also identified that Mr Wang was the subscriber to two telephone numbers. One was a Chinese telephone number and the other was an Australian telephone number. Attempts to contact him on both of those phone numbers have been unsuccessful. On a number of occasions an answer was given when the Chinese number was called, both in Chinese and English, “the phone you are calling is powered off”. Attempts to call Mr Wang on the Australian number resulted in a woman answering the phone who indicated that she did not know Mr Wang, but that she had recently obtained that telephone number.

7. Further enquiries were made at the accountants' office in Parramatta, by an employed solicitor from the plaintiff's solicitors. She spoke with a Mr Duncan. She informed him that she had documents to serve on Mr Wang, and asked whether, if the documents were served on Mr Duncan at the registered office, he would be able to pass them on to Mr Wang. Mr Duncan said he would be able to do that because he dealt with Mr Wang's business partner. He said he could send the documents to the business partner for them to be forwarded to Mr Wang. The solicitor left her contact details with Mr Duncan.

8. Subsequently the solicitor was contacted by the business partner, who said he understood that the solicitor was trying to get into contact with Mr Wang. The solicitor indicated that she had some documents to serve on him. The business partner said that he had got in touch with Mr Wang's assistant. He asked if the solicitor had WeChat, and she indicated that she did. She was provided with an email address for Mr Wang or his assistant. That email address is [email protected].

9. The Assistant Registrar made the following orders and notations, which appear on the online registry of the court:

The court notes that:

1.   On the evidence the defendant is overseas (China).

The court orders that:

2. The application for substituted service is refused.

3. The defendant is to be served in the accordance (sic) with part 11 of the Uniform Civil Procedure Rules 2005 NSW.”

10. The Court of Appeal has set out in Tomko v Palasty (No 2) [2007] 71 NSWLR 61, [2007] NSWCA 369 the principles that should be applied when a review is being conducted under r 49.19. I note in particular the judgment of Hodgson JA at [9] and the judgment of Basten JA at [52]. The opinion expressed by Hodgson JA, that the review may be considered as a de novo hearing, is the approach that has ordinarily been adopted when reviews are conducted.

11. In the present case, and noting what Basten JA said at [52](4)(c), it appears to me that the Assistant Registrar has fallen into error in determining on the evidence that the defendant was overseas in China. The only possible basis for that conclusion was the evidence demonstrating that the defendant had a Chinese phone number. That, however, said nothing about where the defendant was to be found.

12. It appears to me from all the evidence that the defendant is far more likely to be within Australia, given not only that he is and has been for some considerable time the registered proprietor of the Kirribilli property, but also by reason of the discussions that the solicitor for the plaintiff had with Mr Duncan and subsequently with Mr Wang's business partner.

13. That error on the part of the Assistant Registrar is a sufficient reason for the decision to be reviewed notwithstanding that a determination concerning substituted service is a matter of practice and procedure that does not generally affect substantive rights.

14. Mr Wang is obviously making himself elusive, no doubt because he is aware of the default which led to the judgment in Singapore. He may very well be apprehensive in the light of enquiries that have been made that a judgment has been registered here. The plaintiff has made considerable efforts to locate Mr Wang. The amount of the judgment is considerable, more than $8 million, and Mr Wang appears to be engaging in behaviour that suggests he is trying to evade service.

15. In all of the circumstances I am satisfied that, if the orders that are proposed in the notice of motion are made with regard to service of the documents, it is likely that the judgment will come to Mr Wang's attention. Accordingly, I will set aside the decision of the assistant registrar on 2 May 2018.

16. I make the following orders:

(1) An order pursuant to r 49.19 Uniform Civil Procedure Rules 2005 (NSW) that the order made by Deputy Assistant Registrar Gerritsen on 2 May 2018 in this proceeding be wholly discharged.

(2) An order pursuant to r 10.14 UCPR that the plaintiff be taken to have effected personal service of the notice of registration of a foreign judgment exhibited at pages 1 to 14 of RWM-1 to the affidavit of Ross Whyte McClymont sworn 7 February 2018 (Notice of Registration) on the defendant by:

(a)   sending a copy of the Notice of Registration and a sealed copy of any orders contained by the plaintiff pursuant to this Notice of Motion (Substituted Service Orders) to Unit 202, 88 Kirribilli Ave, Kirribilli NSW 2061 (Kirribilli Address) by ordinary pre-paid post addressed to the defendant at the Kirribilli Address;

(b)   sending a copy of the Notice of Registration and the Substituted Service Orders to TMG International Design Pty Ltd c/- Cameron Duncan, CIB Accountants & Advisers 'Blaxland House', Suite 6, 5 Ross St, Parramatta, NSW 2150 (Parramatta Address) by ordinary pre-paid post addressed to the defendant at the Parramatta Address; and

(c)   sending a copy of the Notice of Registration and the Substituted Service Orders to the following email address: [email protected].

(3)   An order that service of the Notice of Registration on the defendant be taken to have been effected on the last date that the Notice of Registration and the Substituted Service Orders are served in accordance with order 2 above.

(4)   An order that the defendant pay the plaintiff's costs of this Notice of Motion.

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Amendments

22 June 2018 - Typographical error

22 June 2018 - Typographical error

Decision last updated: 22 June 2018