Thevar v Maharaj

[2021] NSWSC 993

Supreme Court

New South Wales

Medium Neutral Citation:

Thevar v Maharaj [2021] NSWSC 993

Hearing dates:

2 August 2021

Decision date:

02 August 2021

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

See [14] and [15] of judgment

Catchwords:

CIVIL PROCEDURE — Service — Substituted service — Whether document cannot practicably be served

CIVIL PROCEDURE — Service — Deemed or informal service — Documents to be brought to attention of intended recipient by newspaper advertisement

Legislation Cited:

Civil Procedure Act 2005 (Cth), s 14

Uniform Civil Procedure Rules 2005 (NSW), r 10.14

Cases Cited:

Abbott v Clark [2006] NSWSC 130

Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268

Laurie v Carroll (1958) 98 CLR 310; [1958] HCA 4

Yu v Registrar-General of New South Wales [2010] NSWSC 353

Category:

Procedural rulings

Parties:

Ronald Thevar (Plaintiff)
Roshini Nirmal Lynette Maharaj (Defendant)

Representation:

Counsel:
Mr C Bolger (Plaintiff)

Solicitors:
Blacktown Legal (Plaintiff)

File Number(s):

2018/00349989

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is an application by notice of motion filed 12 July 2021 which I have given leave to be amended in order to amend the relief sought in that notice of motion.

2. The motion, as originally filed, sought an order pursuant to s 14 of the Civil Procedure Act 2005 (Cth) dispensing with the requirement for service of the summons and the documents referred to in the notice of motion. The plaintiff now presses not for that relief, but for alternative relief by way of a direction pursuant to r 10.14(1) of the Uniform Civil Procedure Rules 2005 (NSW) as to steps to be taken for service on the defendant of the proceedings, for the purpose of bringing the proceedings to the notice of the defendant (and thus to rely upon the provisions for substituted service under the Rules.

3. The plaintiff relies on a number of affidavits sworn by the plaintiff's solicitor, Mr Angelo Margiotta, as well as a solicitor in South Africa deposing to the attempted service on the defendant of documents in South Africa (those being affidavits sworn by Ms Keshika Jadoo), and to substantive affidavits of the plaintiff himself sworn on 13 November 2018 deposing to matters which are the subject of the underlying proceedings.

4. The proceedings involve claims in relation to moneys held in bank accounts in the name of the defendant with Westpac Banking Corporation (Westpac) and Commonwealth Bank of Australia (CBA). Freezing orders were obtained in relation to those accounts in November 2018. Those orders were made on an ex parte basis. The present application arises because of the difficulty in locating the physical whereabouts of the defendant in order to be able to effect service on the defendant.

5. The background to the substantive dispute is that the plaintiff and the defendant met on an online dating application, were in a relationship and were engaged to be married. The plaintiff has deposed that, on the advice of an immigration agent, he opened a bank account for the defendant with CBA in order to assist her application for a spousal visa and permanent residency. The defendant is a citizen of the Republic of South Africa (which is relevant when considering the steps that have been taken to locate and effect service on her). The plaintiff had emigrated from South Africa much earlier and has been an Australian citizen since 1993.

6. The evidence is to the effect that the plaintiff, on the completion of the sale of a commercial property owned by him, transferred the net proceeds of sale (being an amount just under $200,000) into the defendant's CBA bank account on 19 September 2018. However, on 9 November 2018, the defendant left Australia, without notice to the plaintiff. Her departure from Australia was discovered only by the plaintiff locating certain receipts on his credit card and a travel booking on his computer.

7. Prior to the defendant leaving Australia, the defendant had opened a new bank account with CBA and an account with Westpac and had transferred the sum of $50,000 between the defendant's bank account and those accounts. The defendant had also expended moneys on the plaintiff's credit card and withdrawn a sum of money which was transferred overseas and/or converted into US dollars. The current balance of the accounts which have been frozen is in the order of $150,000.

8. The plaintiff has not received any communication or correspondence from the defendant since she left Australia.

9. Lengthy attempts have been made in order to effect service of the summons in the proceedings and the relevant documents on the defendant in South Africa, as explained in the affidavits of Mr Margiotta and Ms Jadoo. In particular, service was sought to be effected through judicial and diplomatic channels (and there was an unfortunate loss of some of the court documents at some stage in South Africa which caused further delay). Tracing agents were engaged to assist with locating the defendant.

10. The upshot of all of this is that the best information that the plaintiff has (which has been gleaned from enquiries made of the defendant's ex-husband and the defendant's son, both of whom live in South Africa), is that the defendant's last known whereabouts seems to be in New York.

11. Initially, the application was made for dispensation of service pursuant to s 14 of the Civil Procedure Act, relying upon a decision of Hamilton J in Abbottv Clark [2006] NSWSC 130. However, on further consideration, and in particular relying on the decision of White J, as his Honour then was, in Yu v Registrar-General of New South Wales [2010] NSWSC 353, the plaintiff accepts that there may be a jurisdictional problem in so proceeding (insofar as service is an essential requirement for the jurisdiction to make orders in the substantive proceedings (White J there having cited Laurie v Carroll (1958) 98 CLR 310; [1958] HCA 4 at 323 to 324 in relation thereto); and hence, the amended application for substituted service to be effected through the procedure provided for under r 10.14 of the Rules.

12. The criterion for exercise of the power to make directions for substituted service, pursuant to r 10.14, is that service in the requisite matter cannot practicably be effected. I am satisfied that, in circumstances where there have been lengthy attempts to locate the whereabouts of the defendant, including through Facebook and other searches as adverted to above, it is appropriate to exercise the jurisdiction provided for under r 10.14.

13. The difficulties that arose in Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 do not here arise. In that case, the Court of Appeal made clear that the jurisdiction to make directions for substituted service did not enlarge the territorial jurisdiction of the District Court. Here, no such issue of territorial jurisdiction arises in circumstances where there is clearly jurisdiction to order service of initiating proceedings in this Court outside Australia. I am satisfied therefore, that it is appropriate to exercise the jurisdiction under r 10.14.

14. I will make orders as sought, directing that, instead of service, steps be taken for the purpose of bringing the proceedings to the attention of the defendant by way of publication of notices in The Australian newspaper, The Daily Sun in the Republic of South Africa and in The New York Times, and that such notices should include notice that if there is no appearance entered by the defendant in the proceedings, then orders may be made against the defendant.

15. I will make an order that the summons and documents referred to in the notice of motion are to be deemed to be taken to have been served on the defendant on the expiry of 28 days from the date of publication in the respective newspapers and I will list the matter for directions before me on 14 September 2021.

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Decision last updated: 09 August 2021