Unilan Trelew SA v Apolloy Australia Pty Ltd

[1997] FCA 123

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )          NG 291 of 1996
  )
GENERAL DIVISION  )

UNILAN TRELEW S.A

Applicant

APOLLOY AUSTRALIA PTY
  LIMITED

APOLLOY INTERNATIONAL
  HOLDING LIMITED

Respondents

Coram: Whitlam J
Place:              Sydney

Date:30 January 1997

REASONS FOR JUDGMENT

The applicant moves on notice filed on 12 August 1996 for summary judgment against the respondents.  Neither respondent has filed an appearance in the proceeding.

The notice of motion was returnable on 16 August 1996.  On that day the hearing of the motion was adjourned to 30 August 1996 and, in the absence of the respondents, the applicant was directed to notify them of the adjourned hearing date.  On 30 August 1996, again in the absence of the respondents, the hearing of the motion was adjourned to 13 September 1996 and the applicant was directed to notify them of the new hearing date.

At the applicant's request, the motion was heard on 13 September 1996 in the absence of the respondents.  An affidavit of Druitt Richard Peterson made on 6 September 1996 was relied upon for the purposes of the evidence of the facts and belief required by O 20 r 1(1) of the Federal Court Rules ("the Rules").  In order to prove service of the notice of motion and notice of the adjournment, the applicant read the affidavit of Mak Yin affirmed 22 July 1996 and two affidavits of Alison Garling sworn respectively on 30 August 1996 and 11 September 1996.

The second respondent is a Hong Kong company.  On 21 June 1996 leave was given under O 8 r 2(2) of the Rules to serve the application and statement of claim herein on the second respondent in Hong Kong.  Mak Yin deposes that he purported to serve the application by leaving a copy at the registered office of the second respondent in Hong Kong.  Hong Kong is a convention country.  No attempt appears to have been made to comply with the requirements of Div 2 of O 8 of the Rules.  The purported service outside the jurisdiction is entirely ineffective.

Mr Garling deposes that on 12 August 1996 she sent by fax and post a copy of the notice of motion to be first respondent.  She annexes a copy of a fax dated 12 August 1996 subsequently received by the applicant's solicitors from the first respondent denying responsibility for the debts of the second respondent.  Ms Garling also deposes that on 20 August 1996 she sent a letter from the applicant's solicitors to the first respondent notifying the adjourned date for hearing of the motion on 30 August 1996.

In her second affidavit Ms Garling deposes that on 11 September 1996 she sent by post and fax to the first respondent a letter from the applicant's solicitors enclosing a copy of Mr Peterson's affidavit.  Leaving aside any question of the lateness of such service, it is fatal that the covering letter notified the first respondent that the motion had been adjourned to 19 September 1996.  This date was, of course, six days after the hearing of the motion.

Accordingly, the second respondent has not been served outside the jurisdiction and the first respondent has not been given notice of the adjourned hearing of the motion.  In these circumstances it is unnecessary to consider Mr Peterson's affidavit.  The motion must be refused. 

I certify that this and the preceding 2 pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date: 30 January 1997

Ms Sharon Freund of Barry Lazarus Lawyers appeared for the applicant.

There was no appearance for the respondents.

Date of hearing:    13 September 1996