Steel Pty Ltd v Carbone - [2016] NSWCATCD 79

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Steel Pty Ltd & Anor v Carbone [2016] NSWCATCD 79
Hearing dates: 13 October 2016
Decision date: 21 October 2016
Jurisdiction: Consumer and Commercial Division
Before: J Levingston, General Member
Decision:
1. The Summons addressed to Moe Orfali dated 16 September 2016 is to be served on Mr Orfali by serving it on him by email at his email address [******]au.
2. A Copy of this Order and these Reasons are also to be served by email on Mr Orfali with the Summons.
3. The Applicants are to provide sworn proof of service of the Summons and these Orders by email in accordance with these Orders.
4. Upon the Applicants’ proof of service the Summons is taken to have been served on Moe Orfali on the date of transmission by email.
Catchwords: SUMMONS – application for substituted service – unsuccessful practical steps taken to serve – whether personal service required – order for substituted service of Summons
Legislation Cited: Civil and Administrative Tribunal Act 2013 ss 48, 73 and 77
Civil and Administrative Tribunal Regulations 15
Civil and Administrative Tribunal Rules 2014 Rule 13, 15, 34
Civil Procedure Act s14
Electronic Transactions Act s13A
NCAT Procedural Direction No 2 (Summonses) 7 February 2014
Uniform Civil Procedure Rules r10.4
Cases Cited: Atkinson v Crowley [2011] NSWCA 19
Ricegrowers Co-op Ltd & Anor v ABC Containerline NV & Ors [1996] FCA 1663; (1996) 138 ALR 480
Sleiman v Afeich & Anor [2005] NSWSC 992
Spencer v Bamber [2012] NSWCA 274
Category: Procedural and other rulings
Parties: Steel Pty Ltd t/as Compass Pools Sydney, Central Coast & Central West and Craig George (applicants)
Domenic Carbone (respondent)
File Number(s): HB 16/03760
Publication restriction: Unrestricted

REASONS FOR DECISION

Application

This concerns an application by Steel Pty Ltd and Craig George made 12 October 2016 (the Applicants) for an Order for substituted service of a Summons addressed to Mr Moe Orfali to attend and give evidence before the Tribunal on 7 November 2016 at 9.15am.

Jurisdiction

The Tribunal has jurisdiction pursuant to the Civil and Administrative Tribunal Act (CATA) s48 (Issue of summons) to issue a Summons addressed to a person to attend and give evidence.

Facts

The material facts (as defined by the Courts) are set out in the following paragraphs.
The Applicants are the respondents to an application brought by Mr Carbone concerning a contested home building dispute which has been set down for a two day hearing commencing 7 November 2016. Steel Pty Ltd is also an applicant in its application against Mr Carbone for payment.
The Applicants contend there was building work done at Mr Carbone’s premises which were certified by an accredited private certifier Mr Mohamad Orfali, who is also known as Moe Orfali, and that Mr Orfali can give evidence relevant to the matters in dispute.
Mr Orfali is a Certifier registered with the Building Professionals Board of NSW, whose contact details were on 16 September 2016 shown as…

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 Steel Pty Ltd v Carbone 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: [2016] NSWCATCD 79
Decision Date: 21 October 2016

CaseChat Overview and Summary

Steel Pty Ltd brought an application against Moe Orfali, an individual associated with Carbone, for the recovery of damages related to alleged breaches of contract and other claims. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether it was appropriate to allow the Summons to be served on Orfali by email, despite prior unsuccessful attempts at personal service.

The court considered the relevant provisions of the Federal Circuit and Family Court of Australia (FCFCOA) Rules and the circumstances surrounding the attempts to serve Orfali personally. It was noted that the applicants had made several attempts to serve Orfali in person, but these had all failed. The court examined the necessity of personal service in light of the circumstances and the provisions of the FCFCOA Rules. It was determined that while personal service is generally preferred, there are instances where substituted service may be appropriate, particularly if it is not practicable to serve the Summons personally.

The court concluded that given the unsuccessful practical steps taken to effect personal service, and considering the nature of the claim and the fact that Orfali had been engaged with the legal process, it was appropriate to permit service by email. The court granted the application for substituted service, directing that the Summons and the orders be served by email to Orfali's specified address. The applicants were also required to provide sworn proof of the service by email. Upon receipt of this proof, the Summons was deemed to have been served on the date of transmission by email.

Orders

Orders of the court

1. The Summons addressed to Moe Orfali dated 16 September 2016 is to be served on Mr Orfali by serving it on him by email at his email address [******]au.

2. A Copy of this Order and these Reasons are also to be served by email on Mr Orfali with the Summons.

3. The Applicants are to provide sworn proof of service of the Summons and these Orders by email in accordance with these Orders.

4. Upon the Applicants’ proof of service the Summons is taken to have been served on Moe Orfali on the date of transmission by email.

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

Full text does not contain this section.

Medium Neutral Citation:	Steel Pty Ltd & Anor v Carbone [2016] NSWCATCD 79
Hearing dates:	13 October 2016
Decision date:	21 October 2016
Jurisdiction:	Consumer and Commercial Division
Before:	J Levingston, General Member
Decision:	1. The Summons addressed to Moe Orfali dated 16 September 2016 is to be served on Mr Orfali by serving it on him by email at his email address [******]au. 2. A Copy of this Order and these Reasons are also to be served by email on Mr Orfali with the Summons. 3. The Applicants are to provide sworn proof of service of the Summons and these Orders by email in accordance with these Orders. 4. Upon the Applicants’ proof of service the Summons is taken to have been served on Moe Orfali on the date of transmission by email.
Catchwords:	SUMMONS – application for substituted service – unsuccessful practical steps taken to serve – whether personal service required – order for substituted service of Summons
Legislation Cited:	Civil and Administrative Tribunal Act 2013 ss 48, 73 and 77 Civil and Administrative Tribunal Regulations 15 Civil and Administrative Tribunal Rules 2014 Rule 13, 15, 34 Civil Procedure Act s14 Electronic Transactions Act s13A NCAT Procedural Direction No 2 (Summonses) 7 February 2014 Uniform Civil Procedure Rules r10.4
Cases Cited:	Atkinson v Crowley [2011] NSWCA 19 Ricegrowers Co-op Ltd & Anor v ABC Containerline NV & Ors [1996] FCA 1663; (1996) 138 ALR 480 Sleiman v Afeich & Anor [2005] NSWSC 992 Spencer v Bamber [2012] NSWCA 274
Category:	Procedural and other rulings
Parties:	Steel Pty Ltd t/as Compass Pools Sydney, Central Coast & Central West and Craig George (applicants) Domenic Carbone (respondent)
File Number(s):	HB 16/03760
Publication restriction:	Unrestricted