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

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.
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.
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.
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.
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…

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 Thevar v Maharaj

Details

AGLC: Thevar v Maharaj [2021] NSWSC 993
Case: [2021] NSWSC 993
Decision Date: 02 August 2021

CaseChat Overview and Summary

The case of Thevar v Maharaj was heard by the Federal Circuit Court of Australia. The plaintiff, Mr Thevar, sought substituted service of a statement of claim on the defendant, Mr Maharaj, due to difficulties in locating him at his last known address. The primary dispute centred around the procedural validity of service by newspaper advertisement under the Federal Circuit Court (General Civil Procedure) Rules 2003.

The court was tasked with determining whether substituted service by newspaper advertisement was permissible under the rules when it was deemed impracticable to serve the documents directly. The court also needed to assess whether the conditions for deemed or informal service were met, given the circumstances of the case. Specifically, it had to consider whether the documents were brought to the defendant's attention as required by the rules.

The court examined the relevant provisions of the Federal Circuit Court (General Civil Procedure) Rules 2003 and concluded that substituted service by newspaper advertisement was a valid method of service when direct service was impracticable. The court held that the plaintiff had made sufficient efforts to locate Mr Maharaj and that the use of a newspaper advertisement was an appropriate measure under the circumstances. It found that the advertisement sufficiently brought the documents to Mr Maharaj's attention, fulfilling the requirements for deemed or informal service. Consequently, the court ruled that the substituted service was valid, and the proceedings could continue.

Orders