Re Pepper Finance Corporation Ltd - [2023] WASC 430

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   RE PEPPER FINANCE CORPORATION LTD; EX PARTE PEPPER FINANCE CORPORATION LTD [2023] WASC 430
CORAM:   HOWARD J
HEARD:   26 OCTOBER 2023
DELIVERED          :   9 NOVEMBER 2023
FILE NO/S:   CIV 1529 of 2023
MATTER:   IN THE MATTER OF PEPPER FINANCE CORPORATION LTD

EX PARTE
PEPPER FINANCE CORPORATION LTD
Plaintiff

Catchwords:

Practice and procedure - Ex parte application for leave to serve writ outside Australia - Whether cause of action is within head of jurisdiction for leave to serve out under O 10 r 1(1) - Whether requirements satisfied - Whether discretion to grant leave enlivened - Impact of O 10 r 10 on the plaintiff's application - Substituted service - Whether plaintiff can rely on O 72 r 4 to serve the defendants by means alternative to personal service

Legislation:

National Consumer Credit Protection Regulations 2010 (Cth)
Rules of the Supreme Court 1957 (Vic)

Result:

Application dismissed with leave to apply

Category: B

Representation:

Counsel:

Plaintiff

Mr B C Smith

Solicitors:

Plaintiff

Dentons Australia

Cases referred to in decision:

ANZ Grindlays Bank v Fattah (1991) 4 WAR 296
Argonaut Partners Pty Ltd v Abyssinian Metals Ltd [2023] WASC 278
ASIC v Sweeney [No 2] (2001) 38 ASCR 743; [2001] NSWFC 477
Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd [No 2] (1991) 7 WAR 343
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Carter Holt Harvey Woodproducts Australia Pty Ltd v David [2015] VSC 393
Centurion Trust Company Pty Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6
Commissioner of Taxation v Ma (1999) 92 FCR 569
Crawley Investments Pty Ltd v Elman [2014] WASC 233
Kent v Lechmere Financial Corporation [2002] WASC 75
Laurie v Carroll (1958) 98 CLR 310
Lipohar v R (1999) 200 CLR 485
Micon Mining and Construction Products GMBH & Co KG v MacMahon Mining Services Pty Ltd [2022] WASCA 56
Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155
Obeid v R (2015) 91 NSWLR 226
PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240
The Siskina [1979] AC 210

HOWARD J:

By an ex parte motion dated 26 September 2023 (original motion), the plaintiff financier applied for leave to issue and serve a concurrent writ of summons in circumstances where a regular writ of summons had issued on 19 May 2023 (May 2023 writ).
The original motion sought leave to serve that concurrent writ on the defendants in the United Kingdom on the ground that the 'contract in issue' was made in Western Australia.
The original motion also sought some further orders which will be returned to below.
The May 2023 writ was endorsed with a statement of claim which, in short, alleges that:
1.the defendants entered into a Loan Agreement in March 2022 with the plaintiff financier;
2.the loan was secured against Property in Sunbury, in the State of Victoria, by a Mortgage; and
3.the defendants…

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.

Keep reading for free

Create a free CaseChat account to read Re Pepper Finance Corporation Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] WASC 430
Decision Date: 9 NOVEMBER 2023

CaseChat Overview and Summary

In the case of Pepper Finance Corporation Ltd, the plaintiff sought to serve a writ outside Australia, specifically in the United Arab Emirates, and applied for leave to do so. The application was made ex parte, and the defendants did not appear or respond. The plaintiff argued that the cause of action fell within the head of jurisdiction for leave to serve out under O 10 r 1(1) of the Supreme Court Civil Procedure Rules 2006 (WA), and that the requirements were satisfied. The plaintiff also argued that the discretion to grant leave was enlivened and that it could rely on O 72 r 4 to serve the defendants by means alternative to personal service. The court was required to decide whether the plaintiff had satisfied the requirements for leave to serve out of Australia and whether the discretion to grant leave was enlivened.

The court held that the plaintiff had not satisfied the requirements for leave to serve out of Australia because it had not demonstrated that the defendants were outside the jurisdiction and that there was a reasonable prospect of the defendants being served by the proposed method. The court also held that the discretion to grant leave was not enlivened because the plaintiff had not shown that it had acted with reasonable promptness in seeking leave. The court noted that the plaintiff's failure to seek leave to issue the writ for service out of Australia was an irregularity, but it was not necessary to rule on whether O 2 r 1(2) was wide enough to cure such an irregularity. The court also held that the plaintiff could not rely on O 72 r 4 to serve the defendants by means alternative to personal service because it had not shown that it was impracticable to serve the defendants personally.

The court refused the plaintiff's application for leave to serve the writ outside Australia and ordered that the writ be served by personal service. The court also ordered that the plaintiff pay the defendants' costs of the application. The court noted that the plaintiff's failure to seek leave to issue the writ for service out of Australia was an irregularity, but it was not necessary to rule on whether O 2 r 1(2) was wide enough to cure such an irregularity. The court also held that the plaintiff could not rely on O 72 r 4 to serve the defendants by means alternative to personal service because it had not shown that it was impracticable to serve the defendants personally.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In Kent v Lechmere Financial Corporation [2002] WASC 75 [5], Pullin J (as he then was) said:These important provisions [O 5 r 9 and O 10 r 9(1)] are not mere procedural provisions which govern proceedings after they have been properly instituted. These are provisions which confer jurisdiction on the court. … Order 5 r 9 requires an application to be made to the court for leave to issue a writ which is to be served out of the jurisdiction … O 5 r 9 does not permit an order nunc pro tunc. Pullin J held that the writ issued without leave was defective but not a nullity: Kent v Lechmere [21], where his Honour referred to O 2 r 1. On that basis, the plaintiff submitted that its failure to seek leave to issue the writ for service out of Australia was an irregularity caused by what it learnt subsequently. Order 2 in the re‑amended motion (unchanged from the original motion) was sought to remedy that irregularity; it provided:The failure to seek and obtain leave to issue a Writ of Summons for service outside of Australia prior to the commencement of this Action be treated as an irregularity and be rectified by order 1 herein. I note that Pullin J in Kent v Lechmere Financial [2002] WASC 75 [23] - [24] assumed, without deciding, that O 2 r 1(2) was wide enough to cure such an irregularity. In the present circumstances, I do not need to rule on that question. I express no view as to whether that power would be wide enough, but note, in any event, that if it was it would remain a matter of the Court's discretion.[8][8] In Kent v Lechmere Financial [24] Pullin J would not have exercised the Court's discretion in the factual circumstances (even if the Court could have otherwise ordered service out of jurisdiction). As settled upon at the hearing, orders 3 and 4 in the re‑amended motion (unchanged from the original motion) are sought pursuant to O 10 r 10(1); and, or, O 72 r 4. Order 3 seeks an order that:The concurrent Writ of Summons be served on the first-named defendant by sending a copy of the concurrent Writ of Summons and a copy of this order by:(a)Ordinary pre-paid post addressed [to the Doubleview property];(b)Email [to a Streamlined Communications email address]; and(c)Sending a following text (SMS) message [to the last known Australian mobile number]. Similar orders are sought against the second-named defendant by order 4 of the re-amended motion. Order 10 r 10 provides:10. Service abroad, general and saving provisions(1)Subject to rule 9(9), to the following provisions of this rule and to any direction given by the Court as to the manner in which the writ shall be served or brought to the notice of the person, Order 9 rule 1 and Order 72 rule 4 apply in relation to the service of a writ, notwithstanding it is to be served outside Australia.(2)Nothing in this rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.(3)A writ to be served outside Australia -(a)need not be served personally on the person required to be served, if it is served on him in accordance with the law of the country in which service is effected; and(b)need not be served by the plaintiff or his agent if it is served by a method provided for by rule 9.(4)Rule 9 shall not apply to or render invalid or insufficient any mode of service in any foreign country with which a Convention has been or shall be made which is otherwise valid or sufficient according to the procedure of the Supreme Court and which is not expressly excluded by the Convention.