Perpetual Trustees Victoria Limited v Tatjana Erdogan

[2010] NSWSC 1037

CITATION:	Perpetual Trustees Victoria Limited v Tatjana Erdogan [2010] NSWSC 1037
HEARING DATE(S):	10 September 2010
JUDGMENT DATE :	10 September 2010
JUDGMENT OF:	Garling J
EX TEMPORE JUDGMENT DATE:	10 September 2010
DECISION:	Application to set aside the service of originating process is refused.
CATCHWORDS:	PRACTICE & PROCEDURE – Substituted service – Application to set aside the service of originating process – Whether order for substituted service was correctly and appropriately made – Court’s general discretion to refuse application where applicant has taken an active role in proceedings.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005, r 12.11
CATEGORY:	Procedural and other rulings
CASES CITED:	Alstom Limited v Sirakas [2010] NSWSC 669
PARTIES:	(P) Perpetual Trustees Victoria Limited (D) Tatjana Erdogan
FILE NUMBER(S):	SC 2009/293676
COUNSEL:	(P) P. Newtown (D) A. Martin
SOLICITORS:	(P) Kemp Strang Lawyers (D) Hancocks Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

FRIDAY, 10 SEPTEMBER 2010

2009/293676 PERPETUAL TRUSTEES VICTORIA LIMITED v TATJANA ERDOGAN

EX TEMPORE JUDGMENT

1 HIS HONOUR: Tatjana Erdogan owns a residential investment property at Paddington. In order to purchase it, during 2005, she borrowed $920,000 from Perpetual Trustees Victoria Limited.

2 Perpetual took a mortgage over the Paddington property to secure its financial advance against the possibility that Mrs Erdogan did not pay the interest on the advance or comply with the many other conditions of her loan. Those conditions are to be found in the 64 page document. There were a lot of them.

3 In 2009 and 2010, Mrs Erdogan was beset by a number of personal difficulties and was unable to meet her interest obligations to Perpetual. Perpetual took proceedings, as it was entitled to, served the statement of claim by substituted and not personal service, obtained a default judgment, and took out a writ of possession over the Paddington property. Mrs Erdogan says that she knew nothing at all of the proceedings in this Court until she received notice in July 2010 from the NSW Sheriff ordering that the property be vacated without delay because the Court had ordered that possession of the property be given to Perpetual on 31 July 2010.

4 She immediately instructed lawyers to apply to the Court on her behalf seeking to delay the effect of the order that Perpetual have possession of the property. She also asked that judgment in Perpetual's favour be set aside. She said that she was doing all of this urgently because she had not seen or received the statement of claim which started the proceedings at any time before July 2010.

5 Mrs Erdogan now applies for an order from the Court setting aside the service of the statement of claim upon her. The Rule under which she applies is r 12.11 of the Uniform Civil Procedure Rules 2005. Relevantly it is in this form:

“In any proceedings the Court may make any of the following orders on the application of a defendant:

(a) …

(b) an order setting aside the service of the originating process on the defendant; …”

6 Mrs Erdogan only seeks an order which sets aside the service of the originating process on the defendant. These Rules, and r 12.11(b) in particular, give the Court a discretion to set aside the service of this statement of claim upon Mrs Erdogan. Palmer J made this clear in Alstom Limited v Sirakas [2010] NSWSC 669 at [35].

7 I have decided that I am not prepared to make the order that Mrs Erdogan asks for and the Court will not set aside the service of the statement of claim.

8 Mrs Erdogan argues that the Court should set aside the order for substituted service because Perpetual could have tried harder and at more places to serve her, and she also says that Perpetual should have told the Registrar of the Court when it asked for an order for substituted service that it knew of a post office box for Mrs Erdogan's mail.

9 I do not accept that it was either practicable or reasonable for Perpetual to be required to do any more than it did before being entitled for an order for substituted service. The UCPR do not recognise a post office box as an appropriate place to serve a statement of claim personally. Perpetual did not have a home address for Mrs Erdogan, but they tried to serve her at the investment property which she managed, and also at her place of work. They tried to contact her to arrange service through a number of telephone numbers which she had given them, including her home telephone number, but they had no contact with her. Indeed, the telephone number at her home was not answered.

10 All of this was against a background that Perpetual's lawyers had sent a notice of default to Mrs Erdogan at the post office box in February 2009 and had received no response either by personal contact or else by a payment of any outstanding money. As well, the mortgage documents gave Perpetual the right to serve on Mrs Erdogan any document relevant to the loan at the Paddington property which is what it ultimately did.

11 All that Perpetual had to prove to the Registrar of this Court before it obtained an order for substituted service, was that the statement of claim could not practicably be served personally on Mrs Erdogan: Palmer J in Alstom at [39]-[42]. The facts necessary to prove this must vary from case to case.

12 In my assessment, the evidence which Perpetual put before the Registrar demonstrated very clearly that it was not practicable to serve Mrs Erdogan personally. The Registrar's order was correctly and appropriately made.

13 But Mrs Erdogan claims that the Registrar was not told everything before the order was made. She says that Perpetual did not tell the Registrar about the post office box. I will assume that that is what happened. I see no reason why Perpetual needed to tell the Registrar about the post office box. As I have said, the UCPR do not permit personal service by delivering a document to a post office box. The notice of default which I am satisfied was sent there by Perpetual elicited no response. The complaint that the Registrar was not told about the post office box is not to my way of thinking of any substance at all.

14 Finally, it needs to be said that the Court has a discretion, even if it is satisfied of the complaints of Mrs Erdogan, as to whether it should make the order. Even if I was satisfied as to a number of these matters complained about, I would not exercise my discretion because Mrs Erdogan, before she made the application under r 12.11, acted as if the statement of claim had been served. She instructed her lawyers to appear in the proceedings before the Court on a number of occasions to make application for various orders, some of which were consented to. She proceeded to have her lawyers do this for about six weeks or so, entirely on the basis that she and her lawyers knew what was in the statement of claim. There is no doubt that it had come to her attention, or at least her husband's attention and her lawyer's attention, in July 2010 when they received a copy of it.

15 The purpose of service of a statement of claim is to ensure that its contents come to the attention of the person who is the defendant in the proceedings. From about 20 July 2010 onwards, Mrs Erdogan has known about the contents of the statement of claim. I am satisfied that the conduct that she instructed her lawyers to engage in, with the knowledge of what was in the statement of claim, waived any issue which could possibly arise about the adequacy, regularity or appropriateness of the substituted service of the statement of claim upon her. In those circumstances this application must be dismissed with costs.

Orders

(1) The amended notice of motion filed by the defendant on 23 August 2010 is dismissed.

(2) The defendant is to pay the costs of the motion.

(3) The stay of execution of the writ of possession is extended until 4pm on Tuesday, 14 September 2010.

(4) List the matter for mention at 9.30am on Tuesday, 14 September 2010.

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