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Smirski v Macander

Smirski v Macander

Case [2010] NSWSC 929 19 August 2010

Default Judgment

Service

Proof of Service

Requirements of Affidavit of Service

Notice of Application for Default Judgment

Substituted Service

Ex Parte Hearing

Civil Litigation & Procedure

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CITATION: Smirski v Macander [2010] NSWSC 929

HEARING DATE(S): 19 August 2010

JUDGMENT DATE :
19 August 2010

JUDGMENT OF: Hallen AsJ

DECISION: 1. Leave granted to the Plaintiff to amend her Statement of Claim on or before 2 September 2010, if it is thought necessary to do so.
2. Orders for substituted service as sought by the Plaintiff today made.
3. The proceedings stood over to the Registrar’s List at 9:00 a.m. on 14 October 2010.
4. No order as to the Plaintiff’s costs of the proceedings today.

CATCHWORDS: Property relationships - Default judgment - service - service by post - proof of service - requirements of affidavit of service - requirement to give notice of application for default judgment - application for substituted service - application for ex parte hearing refused

LEGISLATION CITED: Property (Relationships) Act, 1984
Civil Procedure Act 2005

CATEGORY: Procedural and other rulings

CASES CITED: Alstom Limited & Ors v Sirakas [2010] NSWSC 669
Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525
Brown v Axam [2010] NSWSC 413
Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869
Cameron v Cole (1944) 68 CLR 571
Chappell v Coyle (1985) 2 NSWLR 73
Commissioner of Police v Tanos (1958) 98 CLR 383
Hilaire v Harvey (1951) 68 WN (NSW) 61
Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23
Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216
Porter v Freudenberg [1915] 1 KB 857
Ricegrowers Co-op Ltd v ABC Containerline NV (1996) 138 ALR 480
Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed and Ors [2009] NSWSC 207

PARTIES: Kamila Teresa Smirski
Zygmunt Macander

FILE NUMBER(S): SC 2010/44692

COUNSEL: Nicolas Kirby
No appearance by the Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

19 AUGUST 2010

2010/44692 SMIRSKI v MACANDER

JUDGMENT

These are proceedings under the Property (Relationships) Act 1984, commenced by Statement of Claim, filed on 19 February 2010.

2 The first return date of the Statement of Claim was 19 April 2010. However, the Plaintiff acknowledges that the Statement of Claim had not, by then, been served upon the Defendant.

3 To date, the Defendant has not filed an Appearance, or otherwise appeared in the proceedings.

4 There is an affidavit of attempted service relied upon by the Plaintiff which discloses four attempts, between 22 March and 31 March 2010, to serve the Statement of Claim upon the Defendant at an address in Summer Hill.

5 Subsequently, the Plaintiff filed a notice of motion, on 26 May 2010, in which she sought an order that service of the Statement of Claim upon the Defendant could be by ordinary pre-paid post, addressed to the Defendant, at an identified business address at Summer Hill (which was different to the address referred to in the affidavit of attempted service).

6 In support of the notice of motion, the Plaintiff swore an affidavit in which she stated that she was not aware of the…

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 Smirski v Macander

Details

AGLC: Smirski v Macander [2010] NSWSC 929
Case: [2010] NSWSC 929
Decision Date: 19 August 2010

CaseChat Overview and Summary

The matter before the Court involved a dispute over the service of a default judgment application in a property relationship matter. The applicant, Smirski, sought a declaration that the respondent, Macander, held certain properties beneficially for the applicant. The application was served by post, and an affidavit of service was filed. However, the Court was required to determine whether the service was valid, and whether the applicant had complied with the requirements for giving notice of the application for default judgment. Additionally, the Court considered whether substituted service should be granted, and whether an ex parte hearing should be permitted.
The Court held that the service of the default judgment application was invalid as it did not comply with the requirements of the relevant legislation. The Court found that the affidavit of service was insufficient as it did not provide details of the manner in which the application was served, and did not include a statement that the respondent had been given notice of the application for default judgment. The Court also held that substituted service should not be granted as the applicant had not demonstrated that it was impossible or impractical to serve the application personally. Finally, the Court refused the applicant's application for an ex parte hearing, finding that the applicant had not demonstrated any urgency or exceptional circumstances that warranted such a hearing.

The Court's decision highlights the importance of strict compliance with the requirements for service of process in property relationship matters. The Court emphasised that the affidavit of service must include specific details of the manner in which the application was served, and must state that the respondent has been given notice of the application for default judgment. The Court also noted that substituted service is not a substitute for personal service, and should only be granted in exceptional circumstances. Finally, the Court's refusal of the ex parte hearing application demonstrates the need for applicants to demonstrate exceptional circumstances in order to obtain such a hearing. This case serves as a reminder to practitioners to ensure that all requirements for service of process are strictly complied with, and to carefully consider the grounds for any applications for substituted service or ex parte hearings.

Orders