Secure Funding Pty Ltd v Ali
[2025] FedCFamC2G 1264
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Secure Funding Pty Ltd v Ali [2025] FedCFamC2G 1264
File number(s): SYG 3057 of 2024 Judgment of: JUDGE LAING Date of judgment: 6 August 2025 Catchwords: PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the proposed methods of service will result in the documents coming to the attention of the respondents – orders for substituted service made Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 6.06, 6.14 & 6.15
Personal Property Securities Act 2009 (Cth)
Cases cited: Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186
Re Williams (1968) 13 FLR 10
Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed)v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611
Division: General Number of paragraphs: 17 Date of hearing: 6 August 2025 Place: Sydney Solicitor for the Applicant: Ms C Simonidis of Agility Law Group Pty Ltd First Respondent: No appearance Second Respondent: No appearance ORDERS
SYG 3057 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SECURE FUNDING PTY LTD ABN 25 081 982 872
Applicant
AND: JABER ABDULLAH AL ALI
First Respondent
AMY VUONG
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
6 AUGUST 2025
THE COURT ORDERS THAT:
1.Pursuant to rr 6.06(2)(b) and 6.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), the requirement for personal service be dispensed with, and that a sealed copy of the Originating Application filed on 25 November 2024, the Application in a Proceeding filed on 15 May 2025, the Amended Application filed on 3 June 2025, together which each Affidavit filed in this proceeding and the Orders that have been made in this proceeding to date (together the Relevant Documents), be served upon the first respondent by:
(a)sending the Relevant Documents by email to the First Respondent’s Email Addresses; and
(b)a text (SMS) message being sent to the First Respondent’s Mobile Number stating that the Relevant Documents have been sent by email to the First Respondent’s Email Addresses.
2.Pursuant to rr 6.06(2)(b) and 6.14 of the GFL Rules, any further documents to be served upon the first respondent in this proceeding may be served upon the first respondent by:
(a)sending the documents by email to the First Respondent’s Email Addresses; and
(b)a text (SMS) message being sent to the First Respondent’s Mobile Number stating that the documents in question have been sent by email to the First Respondent’s Email Addresses.
3.Pursuant to rr 6.06(2)(b) and 6.14 of the GFL Rules, the requirement for personal service be dispensed with, and a sealed copy of the Relevant Documents be served upon the second respondent by:
(a)sending the documents by email to the Second Respondent’s Email Address; and
(b)a text (SMS) message being sent to the Second Respondent’s Mobile Number stating that the Relevant Documents have been sent by email to the Second Respondent’s Email Address.
4.Pursuant to rr 6.06(2)(b) and 6.14 of the GFL Rules, any further documents to be served upon the second respondent in this proceeding may be served upon her by:
(a)sending the documents by email to the Second Respondent’s Email Address; and
(b)a text (SMS) message being sent to the Second Respondent’s Mobile Number stating that the documents in question have been sent to the Second Respondent’s Email Address.
5.The matter be adjourned to 30 September 2025 at 10:00am for hearing on the question of the further interlocutory relief sought in the Amended Application filed on 3 June 2025.
6.The question of the costs of the hearing today be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING:
Before the Court is an application under the Personal Property Securities Act 2009 (Cth) seeking that a vehicle be delivered or surrendered and that the first respondent pay to the applicant a sum to be quantified under an alleged agreement. The proceeding was commenced by an application filed on 25 November 2024.
An amended application was filed on 3 June 2025, with leave, joining the second respondent to whom registration of the vehicle is said to have been transferred.
Attempts have been made by the applicant to serve both respondents personally. Those attempts have been unsuccessful. The applicant seeks orders for substituted service. For the following reasons, those orders will be made.
RELEVANT PRINCIPLES
Rule 6.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules) provides:
6.06 When is service by hand required
(1)Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.
(2)However, service by hand is not required if:
(a)there are current proceedings for which there is a notice of address for service for the person to be served; or
(b)the Court directs that an application may be served in another way; or
(c)a lawyer accepts service for a party and subsequently files an address of service; or
(d)a lawyer accepts service for a person other than a party.
Rule 6.14 provides:
6.14 Substituted service
(1)If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.
(2)The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.
(3)The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
Rule 6.15 states:
6.15 Matters to be taken into account
In making an order for dispensing with service or for substituted service, the Court may have regard to:
(a)whether reasonable steps have been taken to attempt to serve the document; and
(b)whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
(c)whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and
(d)the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
(e)any other relevant matter.
The applicant relied upon the following authorities in written submissions.
In Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186 at [16], Mason J considered that the question of whether it is impracticable to serve an originating application by hand involves consideration of whether the applicant, at the time of the application for substituted service, is unable, using reasonable effort, to serve the respondent personally.
In Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed)v Huang, in the matter of Royal Express Pty Ltd (No 3) [2021] FCA 611, O’Bryan J considered at [8]:
8… The authorities establish that it is not necessary for an applicant for an order for substituted service to prove that personal service was impossible or futile. Conversely, mere inconvenience in effecting personal service will not suffice…
The applicant also referred to what was said by Gibbs J in Re Williams (1968) 13 FLR 10 at 21 regarding the need to consider whether the method of substituted service will, in all reasonable probability, be effective in bringing knowledge of the proceedings to the attention of the person in question.
APPLICATION
The applicant relied upon the following affidavits:
(a)Affidavit of Robert Walter Foster filed on 25 November 2024 (Foster Affidavit);
(b)Affidavit of Christina Simonidis filed 18 December 2024 (First Simonidis Affidavit);
(c)Affidavit of Rodney Finn filed on 19 December 2024 (Finn Affidavit);
(d)Affidavit of Christina Simonidis filed on 15 May 2025 (Second Simonidis Affidavit);
(e)Affidavit of Christina Simonidis filed on 20 May 2025 (Third Simonidis Affidavit);
(f)Affidavit of Christina Simonidis filed on 10 June 2025 (Fourth Simonidis Affidavit);
(g)Affidavit of Geoff Threlfo filed on 21 July 2025 (First Threlfo Affidavit); and
(h)Affidavit of Geoff Threlfo filed on 21 July 2025 (Second Threlfo Affidavit).
The applicant submitted that it was impracticable to serve the first respondent with the originating process, with the foregoing evidence demonstrating the following:
(a)on 12 December 2024, an agent for the applicant attended the first respondent’s last known address in Fairfield (the Fairfield Address) to serve the first respondent. A copy of the originating application and Foster Affidavit (Originating Documents) were placed in the mailbox of the Fairfield Property: Finn Affidavit at [6]; Foster Affidavit at [18] and [22]; Exhibit RFW-2;
(b)that same day, the first respondent called the applicant’s solicitors’ office on a mobile phone number (First Respondent’s Mobile Number) and, during that call, enquired about the correspondence that had been sent to him from the applicant’s solicitor: First Simonidis Affidavit at [2];
(c)on 17 December 2024, 16 May 2025 and 4 June 2025, the Originating Documents (amongst other Court documents and related correspondence) were sent to the last known email addresses for the first respondent (First Respondent’s Email Addresses): First Simonidis Affidavit at [3]; Third Simonidis Affidavit at [2]-[3]; Fourth Simonidis Affidavit at [13]-[15] and related exhibits; and
(d)having received no further communications from the first respondent, on 7 June 2025 and 8 July 2025 attempts were made by the applicant’s service agent to serve the first respondent personally at the Fairfield Address. Those attempts were unsuccessful. Specifically:
(i)on 7 June 2025, the applicant’s agent was informed by an unknown male at the Fairfield Address that the first respondent was not known to him: First Threlfo Affidavit at [2]; and
(ii)on 8 July 2025, the applicant’s service agent was further advised by a female occupant at the Fairfield Address that the first respondent was not known to her and that she did not know the photographed person shown in the first respondent’s driver’s licence: First Threlfo Affidavit at [4].
The applicant submitted that the proposed methods of service would be effective in bringing documents to the attention of first respondent, because:
(a)although the first respondent apparently does not reside at the property, he appears to have received documents at the Fairfield Address on or around 12 December 2024;
(b)in the circumstances, at least the existence of the proceeding has been brought to the first respondent’s attention;
(c)the First Respondent’s Email Addresses appear to be active, at least insofar as no notifications have been sent in reply to the emails from the applicant’s solicitors indicating that the accounts have been deactivated or that the emails could not be received: Third Simonidis Affidavit at [4] and Fourth Simonidis Affidavit at [15]; and
(d)the effectiveness of the First Respondent’s Mobile Number has been demonstrated during the currency of this proceeding.
In relation to the second respondent, the applicant observed that material produced under subpoena demonstrated that the vehicle was registered in her name with an address located in Canley Vale (Canley Vale Address): Second Simonidis Affidavit at [4] and Exhibit CMS-1. It was submitted that personal service would be impracticable, but that the proposed methods would be sufficient to draw the documents to the second respondent’s attention. This was by reference to the following:
(a)on 16 May 2025, the Originating Documents (together with other Court documents, the orders made on 28 April 2025 and related correspondence) were sent by express post to the Canley Vale Address: Third Simonidis Affidavit at [7]-[8] and Exhibit CMS-2. Although a typographical error appears to have occurred on the covering correspondence in question (which referenced “Carley Vale” rather than “Canley Vale”, for the following reasons it is apparent that the documents have nonetheless been received by the second respondent;
(b)on 22 May 2025, the applicant’s solicitor received the following communications from the second respondent:
(i)a telephone call using a particular mobile phone number (Second Respondent’s Mobile Number), confirming that she received documents relating to this proceeding in the mail; and
(ii)an email from an email address apparently associated with the second respondent (Second Respondent’s Email Address) stating “I have received the information regarding this case” and asking that her details be removed on the basis that she has “nothing to do with this” and claimed not to be “in possession” of the vehicle: Fourth Simonidis Affidavit at [3]-[9] and Exhibit CMS-1;
(c)attempts have been made on 7 June 2025, 17 June 2025 and 21 June 2025, unsuccessfully, to serve the second respondent personally at the Canley Vale Address. On the two latter occasions, the agent was advised by an occupant that the second respondent was not living at the address or known to them: Second Threlfo Affidavit at [3]-[4];
(d)the Originating Documents, (together with other Court documents, including the amended application filed on 3 June 2025, as well as related correspondence) were also sent to the Second Respondent’s Email Address on 4 June 2025, with no undeliverable message received in response: Fourth Simonidis Affidavit at [12] and [15]; Exhibit CMS-2; and
(e)no further communications have been received from the second respondent.
I accept the applicant’s submissions. Although the applicant has not taken every possible step to bring the documents and proceeding to the respondents’ attention, I am satisfied that reasonable steps have been taken. There is no reason to believe that further attempts at personal service will be successful where others have failed. I am not satisfied that the costs and delay involved in requiring such steps to be taken are proportionate to what is at stake in this proceeding. Significantly, it is apparent that the steps taken have been sufficient to put the respondents on notice of the proceeding.
At the hearing of the substituted service application, some issues were raised regarding the form of the orders originally proposed. In particular, the original orders proposed that each document in the proceeding be sent (inter alia) on an ongoing basis to residential addresses at which it does not appear that the respondents now reside. After some discussion at hearing, an amended form of orders was proposed by the applicant. Those orders provided for service of documents utilising electronic means of communication. I am satisfied those orders are appropriate, in circumstances where (a) the proposed methods of communication include the use of phone numbers that have proven effective for contact during the currency of this proceeding and (b) the email addresses proposed to be utilised appear not to have been decommissioned and the one associated with the second respondent has been used during the currency of the proceeding.
CONCLUSION
In the foregoing circumstances, I am persuaded that orders to the effect sought by the applicant regarding service ought to be made.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 August 2025