Willmott v Adamo (No 2)

[2024] NSWSC 1682

Supreme Court

New South Wales

Medium Neutral Citation:

Willmott v Adamo (No 2) [2024] NSWSC 1682

Hearing dates:

19 December 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

See [22]

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 and 11A and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - whether the fourth defendant’s dissolved status prevents the plaintiff from proceeding against it.

Legislation Cited:

New Hampshire Revised Statutes, §304-C:144, §304-C:137

Uniform Civil Procedure Rules 2005 (NSW), r 11.7

Cases Cited:

Willmott v Adamo [2024] NSWSC 682

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 / 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

EX TEMPORE JUDGMENT

1. This matter comes before me again for the purposes of the plaintiff seeking leave to proceed against the fourth defendant and then seeking default judgment against the fourth defendant.

2. The matter first came before me on 15 May 2024, at which time the plaintiff sought similar orders. I published my judgment on 5 June 2024 (see Willmott v Adamo [2024] NSWSC 682). In my earlier judgment I set out the reasons why I was not satisfied that the fourth defendant had been properly served. In particular, as I identified at [70] of that judgment, I was not satisfied there had been compliance with r 11.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) in that a notice in the approved form was not served on the fourth defendant.

3. The background to the matter, the law which applies in circumstances in which a plaintiff is seeking leave to proceed against a foreign corporation and the law which applies to service of that foreign corporation is set out in some detail in my earlier judgment. It is not necessary that I say more about that in this judgment.

4. The plaintiff comes back before me seeking the same orders, that is orders for leave to proceed and default judgment, on this occasion having purported to serve the fourth defendant, firstly, with an amended statement of claim on 4 September 2024 and, secondly, with a further amended statement of claim on 1 November 2024.

5. In support of the fresh application the plaintiff relies upon a number of affidavits of the plaintiff's solicitor, Gregory John Williams, being affidavits dated 27 March 2023, 10 May 2024, 20 November 2024 and 16 December 2024. I am also in receipt of helpful written submissions from the plaintiff.

6. On the hearing of the application, Mr Sheller SC appears with Mr Jullienne for the plaintiff. They mentioned appearances on behalf of the other defendants, being Mr Talintyre for the first and second defendants and Mr Perlman for the third defendant. There is no appearance for the fourth defendant.

7. The plaintiff says that the defect that I identified in the earlier application has now been resolved. It has been resolved by proper service through the Registrar under pt 11A of the UCPR, with service being effected on 4 September 2024. Again, it is not necessary that I detail all the evidence in support of the application. Essentially the plaintiff has gone through the same process as earlier but on this occasion all of the proper documents have been served.

8. However, the plaintiff no longer seeks to rely on the service of the amended statement of claim on 4 September 2024 but rather seeks to rely on the service of a further amended statement of claim, having regard to the affidavit of Mr Williams, on 1 November 2024.

9. The plaintiff submits that the further amended statement of claim was served in accordance with UCPR pt 11. Mr Sheller directs me to the correspondence and an email dated 1 November 2024 with the appropriate notice attached to that correspondence.

10. There is only one issue about which there may be some doubt, which is whether the plaintiff is now out of time to serve the registered agent of the fourth defendant. As I detailed in my earlier judgment, according to New Hampshire law, service on a limited liability company may be validly effected through service on the registered agent.

11. In this case, the claim being pursued by the plaintiff is an “unknown claim” as that term is understood in the New Hampshire Revised Limited Liability Company Act XXVIII NH Rev Stat Ann (2013) (“New Hampshire Company Act”). It is thus permissible for a plaintiff seeking to pursue a claim against a dissolved limited liability company to pursue that claim within three years of the date on which the notice of dissolution is published in accordance with the New Hampshire law.

12. Here, the plaintiff has commenced proceedings within three years of the date of dissolution. It is less clear that there has ever been a notice as required under New Hampshire Company Act §304-C:144 (disposition of unknown claims against dissolved limited liability company).

13. Again, I raised this with Mr Sheller and he directed me to the affidavit of Mr Williams dated 10 May 2024, in which Mr Williams said he was not aware of the notice having been published. I doubt that a solicitor saying he was not aware of a notice being published would suffice without establishing that reasonable enquiries had been made to determine whether a notice had in fact been published.

14. However, in the circumstances of this matter, that is irrelevant because I am satisfied that, having regard to §304-C:137, the administrative dissolution of a limited liability company does not terminate the authority of its registered agent.

15. It follows that the registered agent would have the authority to accept service on behalf of the company and that the company may be served through service on the registered agent in accordance with New Hampshire law. That has occurred in this case.

16. I am satisfied that it remains permissible to serve the registered agent in accordance with New Hampshire law and, of course, in accordance with Australian law, after a period of three years subsequent to the dissolution of the company (the relevant date being 31 August 2024) provided that proceedings were commenced within three years of the dissolution. As these proceedings were commenced on 2 November 2022, the requirements of the New Hampshire law have been satisfied.

17. It also follows that it remains permissible for the plaintiff to serve the further amended statement of claim on the registered agent of the fourth defendant in November 2024. I am satisfied that service of the further amended statement of claim has been effected in accordance with pt 11 of the UCPR.

18. For all the reasons set out in my earlier judgment and having regard to the updated evidence on behalf of the plaintiff, I am satisfied that the registered agent of the defendant has been properly served with the further amended statement of claim on 1 November 2024.

19. I note also that the agent has been given notice of this application. In his affidavit of 16 December 2024, Mr Williams refers to an email being sent to the fourth defendant on 2 December 2024 and 9 December 2024 confirming the matter was listed for hearing today. The matter has been called and there has been no appearance.

20. For all of the reasons set out herein, I am thus satisfied that the plaintiff should be granted leave to proceed against the fourth defendant. Further, the matter has been called; there is no appearance by the fourth defendant today; and the 28 days to enter an appearance since service has expired. In these circumstances, judgment should be entered against the fourth defendant.

21. I have also been informed today that the proceedings against the other defendants have been settled subject to the filing of terms. Those terms can be sent to my chambers in due course. In the meantime, I will vacate the hearing date.

22. I make the following orders:

1. Pursuant to r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW), leave is granted to the plaintiff to proceed against the fourth defendant.

2. Judgment for the plaintiff against the fourth defendant for damages to be assessed in accordance with paragraphs 32 to 53 of the further amended statement of claim filed on 6 September 2024.

3. The plaintiff's costs be the costs in the proceedings.

4. The hearing date of 5-16 May 2025 is vacated.

5. The matter is listed for directions on 7 February 2025, at which time the plaintiff will indicate if she intends to proceed with an assessment in respect of damages.

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Decision last updated: 04 January 2025