Willmott v Adamo - [2024] NSWSC 682

Supreme Court

New South Wales

Medium Neutral Citation: Willmott v Adamo [2024] NSWSC 682
Hearing dates: 15 May 2024
Date of orders: 05 June 2024
Decision date: 05 June 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
See [82]

Catchwords:
CIVIL PROCEDURE – service outside Australia – application for leave to proceed and default judgment against the fourth defendant – whether the fourth defendant validly served with the statement of claim – where the fourth defendant is a dissolved company formerly registered in the United States of America – where the plaintiff relies upon UCPR pts 11, 11A and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters – whether the plaintiff is able to rely upon pt 11A in circumstances where the originating process was not served pursuant to a request by the Registrar of this Court – whether the fourth defendant was served in accordance with New Hampshire law – whether the requirement to serve a notice in accordance with r 11.7 of the UCPR should be dispensed with – whether the fourth defendant’s dissolved status prevents the plaintiff from proceeding against it

Legislation Cited:
Australian Consumer Law, ss 138, 271, 272
Uniform Civil Procedure Rules 2005 (NSW), rr 11.4, 11.5, 11.7, 11.8AA, 11.8AB, 11.8AC, 11A.4, 11A.5, 11A.6, 11A.8, sch 6

Cases Cited:
Agar v Hyde (2000) 201 CLR 552
Bingley-Pullen v Montgomery [2018] NSWSC 1308
Hutchinson v AD Securities America LLC [2021] NSWSC 1573
Maloney v The Queen (2013) 252 CLR 168
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Nitro Circus Touring Australia Pty Ltd v Lenzoni [2016] NSWSC 178
Rossiter v Core Mining Limited [2015] NSWSC 360

Texts Cited:
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965), art 10
New Hampshire Revised Statutes, §304C:5, §304-C:37, §304C:137, §304-C:144, §510:2, §510:13
New Hampshire Supreme Court Rules, r 26

Category: Procedural rulings
Parties: Claire Willmott (Plaintiff)
Shona Adamo (First Defendant)
Matthew Adamo (Second Defendant)
Runstar Pty Ltd t/as Peppertown Gold Coast (Third Defendant)
Alien Flier LLC (Fourth Defendant)
Representation:
Counsel:
JC Sheller SC and B Julienne (Plaintiff)
Solicitors:
Clayton Utz (Plaintiff)
Lander & Rogers (First and Second Defendants)
Moray & Agnew (Third Defendant)

File Number(s): 2022/00143770
Publication restriction: Nil

JUDGMENT

This matter came before the Court on 15 May 2024 for the hearing of an amended notice of motion filed by the plaintiff on 1 March 2024. The plaintiff seeks two orders of substance being:

pursuant to rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the Court grant leave to the plaintiff to proceed against the fourth defendant; and

judgment for the plaintiff against the fourth defendant for damages to be assessed as pleaded in paragraphs 32 to 53 of the amended statement of claim filed on 15 December 2022.

The application is supported by affidavits from the solicitor for the plaintiff dated 27 March 2023, 7 July 2023, 1 March…

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 Willmott v Adamo

Details

AGLC: Willmott v Adamo [2024] NSWSC 682
Case: [2024] NSWSC 682
Decision Date: 05 June 2024

CaseChat Overview and Summary

The case of Willmott v Adamo involved the plaintiff seeking leave to proceed against the fourth defendant, a dissolved company formerly registered in the United States of America. The plaintiff aimed to obtain a default judgment against the fourth defendant, raising issues regarding the service of the statement of claim. The case was heard in the Federal Circuit Court of Australia.

The central legal issues revolved around whether the plaintiff had validly served the statement of claim on the fourth defendant and whether the plaintiff could rely on the provisions of the UCPR and the Hague Convention in this context. Specifically, the court needed to determine if the plaintiff could proceed under UCPR Part 11A, despite the originating process not being served pursuant to a request by the Registrar, and whether the service complied with New Hampshire law. Additionally, the court had to consider whether the fourth defendant's status as a dissolved company precluded the plaintiff from taking further action against it.

The court examined the service of the statement of claim under UCPR Part 11A and the Hague Convention, noting that the plaintiff did not seek leave from the Registrar to serve outside Australia. The court considered whether this procedural omission invalidated the service. The court also scrutinised the service of the statement of claim under New Hampshire law, determining if it complied with the requirements set forth in UCPR Rule 11.7. Furthermore, the court assessed whether the fourth defendant's dissolved status affected the plaintiff's ability to pursue legal action against it. Ultimately, the court found that the plaintiff's failure to comply with the procedural requirements under UCPR Part 11A invalidated the service of the statement of claim on the fourth defendant. The court also held that the plaintiff could not proceed against the fourth defendant due to its dissolved status.

No orders were made as the application for leave to proceed was dismissed.

Orders