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

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.
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.
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.
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.
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…

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 (No 2)

Details

AGLC: Willmott v Adamo (No 2) [2024] NSWSC 1682
Case: [2024] NSWSC 1682
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case of Willmott v Adamo (No 2) involved the plaintiff, Willmott, who sought to enforce a default judgment against the fourth defendant, a dissolved company formerly registered in the United States of America. The dispute centred on the validity of the service of the statement of claim on the fourth defendant and the appropriateness of proceeding against a dissolved entity. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues before the court were whether the plaintiff had correctly served the statement of claim on the fourth defendant in accordance with the Uniform Civil Procedure Rules (UCPR) and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Additionally, the court needed to determine whether the dissolved status of the fourth defendant precluded the plaintiff from proceeding against it. The plaintiff argued that the service was valid, and the fourth defendant's dissolution did not bar the action.

The court examined the plaintiff's compliance with the UCPR and the Hague Convention in effecting service. It found that the service was properly executed in line with these legal instruments. However, the court also considered the implications of the fourth defendant's dissolved status. The court concluded that while the service was valid, the plaintiff could not proceed against a dissolved entity. The court ultimately ruled that the plaintiff's application for leave to proceed and for default judgment against the fourth defendant was dismissed, as the dissolution of the company prevented the plaintiff from continuing the action against it.

Orders