Thaler v Amzalak (No. 4)

[2013] NSWSC 1347

Supreme Court

New South Wales

Medium Neutral Citation:	Thaler v Amzalak (No. 4) [2013] NSWSC 1347
Hearing dates:	17 September 2013
Decision date:	17 September 2013
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Leave is granted to serve Yankel Koncepolski with the documents identified in paragraph 3 of the Notice of Motion by forwarding copies by email to the two email addresses identified in paragraph 4 of the Notice of Motion. In addition, a copy of the orders that I have made today are to be forwarded by email to those two addresses.
Catchwords:	PROCEDURE - freezing order - proposed recipient evading service - substituted service - no point of principle
Cases Cited:	Thaler and Amzalak [2013] NSWSC 632 Thaler and Amzalak [2013] NSWSC 1345
Category:	Interlocutory applications
Parties:	Yankel Koncepolski (Applicant) Benjamin Amzalak (aka Binyomin Zeev Amzalak) (Defendant)
Representation:	Counsel: No appearance (Plaintiff) G Segal (Defendant) Solicitors: In person (Applicant) Brown Wright Stein (Defendant)
File Number(s):	2010/361581

Judgment

1. On 13 September 2013 Beech-Jones J granted an asset freezing order arising out of the proceedings in Thaler and Amzalak [2013] NSWSC 632: see his judgment Thaler and Amzalak [2013] NSWSC 1345. In the orders that he made there was a particular order with respect to the service of the Plaintiff, Mr Thaler. No particular orders were made with respect to the service of a Yankel Koncepolski who figured prominently in the proceedings.

1. Difficulties have been experienced serving Mr Koncepolski and for that reason the Defendant now applies by Notice of Motion for orders, either that he be deemed to have been served with the necessary documents by reason of email of the orders which has already occurred, alternatively, that leave be given to serve him by forwarding copies of the documents by email to two email addresses. The first is an email address which the evidence clearly indicates is the email address of Mr Koncepolski. The other email address is that of the solicitor that he retained and who, on the evidence, is still sufficiently involved enough to forward material to him when the solicitor receives it.

1. I am satisfied, notwithstanding the serious nature of the freezing order, that a form of substituted service should be permitted because the evidence of the process server shows clearly that Mr Koncepolski is actively avoiding service of the orders.

1. Although I am satisfied that he has already received the documents, he may know by reason of his involvement in litigation that personal service of the orders would ordinarily be necessary. It is important that the material be served on him together with a copy of the order that I am making for substituted service so that he understands that service has in fact been effected on him and that the freezing order must be obeyed.

1. Accordingly, leave is granted to serve Yankel Koncepolski with the documents identified in para 3 of the Notice of Motion by forwarding copies by email to the two email addresses identified in paragraph 4 of the Notice of Motion. In addition, a copy of the orders that I have made today are to be forwarded by email to those two addresses.

1. The Defendant has also indicated that he may wish to examine Mr Koncepolski with regard to his assets to further the purposes of the order. The Defendant is concerned that if Mr Koncepolski hears of that in advance he may take steps which would diminish the effect of the orders. On those circumstances I will make an order that the transcript of the proceedings today before me be restricted to the Defendant until the matter is next before the Court.

1. The Defendant has liberty to apply to the Court on 24 hours notice. Costs are reserved.

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