Syndicate Mortgage Solutions Pty Ltd v El-Sayed - [2009] NSWSC 207

CITATION: Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed & ors [2009] NSWSC 207

HEARING DATE(S): 13 March 2009

JUDGMENT DATE :
27 March 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: Notice of motion dismissed

CATCHWORDS: PROCEDURE - Service of Process –substituted service - whether impracticability of current method of service established - whether method of substituted service proposed is reasonably likely to bring proceedings to defendant’s notice

LEGISLATION CITED: (CTH) Australian Securities and Investment Commission Act 2001, s 12CA, s 12CD, s 12DA
(NSW) Fair Trading Act 1987, s 42
(NSW) Uniform Civil Procedure Rules 2005, r 10.14

CATEGORY: Procedural and other rulings

CASES CITED: Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525
Chappell v Coyle (1985) 2 NSWLR 73
Hilaire v Harvey (1951) 68 WN (NSW) 61
Porter v Freudenberg [1915] 1 KB 857; [1914-15] All ER Rep 918
Ricegrowers Co-op Ltd v ABC Containerline NV (1996) 138 ALR 480

PARTIES: Syndicate Mortgage Solutions Pty Ltd (plaintiff/first cross-defendant)
Khaled El-Sayed (first defendant/first cross-claimant)
Khayrieh El-Sayed (second defendant/second cross-claimant)
National Australia Bank Limited (third defendant)
Perpetual Trustees Victoria Limited (fourth defendant)
Haysam Mouhajar (second cross-defendant)
Raymond Mawad (third cross-defendant)
Registrar General of NSW (fourth cross-defendant)

FILE NUMBER(S): SC 2585/08

COUNSEL: Mr D Knoll (plaintiff/first cross-defendant)
Mr S Diab (sol) (first & second defendants/cross-claimants)
Ms K Jones (sol) (third cross-defendant)

SOLICITORS: Leon M Ratner & Associates (plaintiff/first cross-defendant)
Simon Diab & Associates (first & second defendants/cross-claimants)
Colin Biggers & Paisley (third cross-defendant)
Legal Services, Dept of Lands (fourth cross-defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday, 27 March 2009

2585/08 Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed

JUDGMENT

1 HIS HONOUR: The defendants and cross-claimants, Mr and Mrs El-Sayed, apply for an order for substituted service of their Amended Statement of Cross-claim filed on 15 October 2008 on the second cross-defendant, Haysam Mouhajar, by leaving it at premises known as Platinum One Financial Services, Unit 8, 6 Gladstone Road, Castle Hill (“the Castle Hill address”). In their Amended Cross-claim, Mr and Mrs El-Sayed claim that Mr Mouhajar engaged in misleading and deceptive conduct in contravention of (CTH) Australian Securities and Investment Commission Act, s 12DA, and (NSW) Fair Trading Act, s 42, and unconscionable conduct in contravention of ASIC Act, s 12CA and 12CB, and Fair Trading Act, s 43 - or alternatively was involved in contraventions by the plaintiff and first cross-defendant Syndicate Mortgage Solutions Pty Limited of those provisions - in connection with misrepresentations allegedly made to the El-Sayeds which are said to have induced them to execute various security documents in favour of Syndicate Mortgage Solutions.

2 UCPR r 10.14 provides:

(1) If a document that is required or permitted to be served on a person in connection with any proceedings:

(a) cannot practicably be served on the person, or

(b) cannot practicably be served on the person in the manner provided by law,

the court may, by…

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.

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Details

Case: [2009] NSWSC 207
Decision Date: 27 March 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Syndicate Mortgage Solutions Pty Ltd v El-Sayed involved a dispute concerning the service of legal proceedings against the defendant, El-Sayed. The plaintiff sought to enforce a judgment debt by serving documents through a method of substituted service due to the defendant's absence from his last known address. The central legal issues before the court were whether the impracticability of serving the defendant by the usual method had been adequately demonstrated and if the proposed method of substituted service was reasonably likely to bring the proceedings to the defendant's attention.

The court examined the evidence provided by the plaintiff to determine the impracticability of serving the defendant through conventional means. It considered the defendant's history of evading service, including instances where he had been served at a different address and subsequently moved without leaving a forwarding address. The court also evaluated the reasonableness of the proposed substituted service method, which involved placing the documents on the defendant's car, given his known attachment to the vehicle. The court concluded that the evidence supported both the impracticability of the standard service method and the likelihood that the substituted service method would inform the defendant of the proceedings.

Based on the findings, the court ruled in favour of the plaintiff's application for substituted service. The decision was grounded in the established likelihood that the proposed method would effectively notify the defendant of the legal action against him. The court determined that the defendant's evasive tactics justified the use of an alternative service method. The orders of the court permitted the plaintiff to proceed with the substituted service as outlined in the application.

Orders