Zepinic v Chateau Constructions (Aust) Limited (No 2)

[2013] NSWSC 1803

Supreme Court

New South Wales

Medium Neutral Citation:	Zepinic v Chateau Constructions (Aust) Limited (No 2) [2013] NSWSC 1803
Hearing dates:	15 November 2013
Decision date:	15 November 2013
Jurisdiction:	Equity Division
Before:	Darke J
Decision:	The plaintiff's Notice of Motion filed on 8 November 2013 is dismissed with costs.
Catchwords:	PROCEDURE - civil - service - international PROCEDURE - civil - service - service to an acknowledged address
Legislation Cited:	Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Dr Vito Zepinic (In Person) (Plaintiff) Chateau Constructions (Aust) Limited (Defendant)
Representation:	Counsel: B Ilkovski (Defendant) Solicitors: Toomey Pegg Lawyers (Defendant)
File Number(s):	2013/132492
Publication restriction:	Nil

Judgment

1. By a Notice of Motion filed on 8 November 2013 the plaintiff seeks what is, in effect, a summary dismissal of the defendant's Notice of Motion filed on 12 July 2013 on the basis that such motion has not been served upon the plaintiff. The plaintiff deposes, in his affidavit affirmed on 5 November 2013, that he has never received the defendant's Notice of Motion. That Notice of Motion, together with a Notice of Motion filed by the plaintiff on 2 July 2013, are before me for hearing today.

1. An affidavit sworn by Mr Andrew Loel, the solicitor with carriage of the matter on behalf of the defendant, on 15 November 2013, establishes to my satisfaction that the Notice of Motion was sent by post on 12 July 2013 to the plaintiff at an address in London. That address is the address for service given by the plaintiff in his Statement of Claim which was filed on 30 April 2013. Moreover, Mr Loel's affidavit establishes that the motion was sent to an email address apparently used by the plaintiff and was received at that address.

1. Both the London address and the email address were the subject of discussion in related proceedings in this Court on 3 May 2013 before Nicholas J. On that occasion, the transcript reveals, the plaintiff indicated that the London address was a place where documents could be sent to him, and although he expressed an aversion to the sending of documents to the email address, the plaintiff made it clear enough that it was an email address which was used by him.

1. It is also apparent from the plaintiff's affidavit that the plaintiff received by email the defendant's written submissions in support of its motion, which submissions in their terms set out the orders sought in the Notice of Motion and deal in detail with the issues raised by it. It appears the submissions were received by the plaintiff on about 2 November 2013.

1. In these circumstances I consider that service of the Notice of Motion has been effected in accordance with an acknowledgment made by the plaintiff within the meaning of Uniform Civil Procedure Rules 2005 r 10.6, the acknowledgment being the statement of the address as the address for service in the Statement of Claim. The statements made to the Court by the plaintiff on 3 May 2013 also constitute an acknowledgment of the address as an appropriate address for service.

1. In all the circumstances, I am satisfied that the defendant's Notice of Motion has been sufficiently brought to the plaintiff's attention such that it is appropriate for the defendant's Notice of Motion to be heard today, together with the plaintiff's Notice of Motion. I therefore dismiss the plaintiff's Notice of Motion filed 8 November 2013 with costs.

**********

Decision last updated: 05 December 2013