Zepinic v Chateau Constructions (Australia) Ltd
[2013] NSWCA 214
•01 July 2013
Court of Appeal
New South Wales
Case Title: Zepinic v Chateau Constructions (Australia) Ltd Medium Neutral Citation: [2013] NSWCA 214 Hearing Date(s): 1 July 2013 Decision Date: 01 July 2013 Before: McColl JA Decision: See paragraph 10
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PROCEDURE - service - whether service of notice of motion by post sufficient service - UCPR 10.6(2) Legislation Cited: Supreme Court Rules
Uniform Civil Procedure RulesCategory: Interlocutory applications Parties: Dr Vito Zepinic - first applicant/first respondent on the motion
Milla Zepinic - second applicant/second respondent on the motion
Chateau Constructions (Australia) Ltd - respondent/applicant on the motionRepresentation - Counsel: Counsel:
Applicants/respondents on the motion - no appearance
B Ilkovski - respondent/applicant on the motion- Solicitors: Solicitors:
Applicants/respondents on the motion - no appearance
Toomey Pegg Lawyers - respondent/applicant on the motionFile Number(s): CA 2010/45208 Decision Under Appeal - Before: Colefax DCJ - Date of Decision: 20 November 2009 - Citation: Zepinic v Chateau Constructions (Australia) Ltd - Court File Number(s): DC 2009/2002 Publication Restriction: No
JUDGMENT
McCOLL JA: This is an application by Chateau Constructions (Australia) Limited ("Chateau Constructions") pursuant to an amended notice of motion filed on 17 June 2013, seeking orders against Dr Vito Zepinic and Milla Zepinic in relation to interest on costs and disbursements and the payment of the costs of the motion by way of specified gross sum. The notice of motion was adjourned on a previous occasion from 17 June 2013 to today's date.
The motion was originally filed on 29 May 2013. As originally filed, paragraphs 1(a) and 1(b) of the motion, instead of specifying monetary amounts, set out question marks. The motion was amended on 17 June 2013 to specify monetary amounts in each of those subparagraphs.
On 25 June 2013, an email apparently from Dr Zepinic was received in the Court Registry referring to that adjournment. The email stated that as Dr Zepinic is a resident of the United Kingdom, he does not have a legal representative or an authorised person for service in Australia, and has not received any documents from Chateau Constructions in relation to what is referred to as the "above stated case". That appears to be a reference to the case before this Court, having regard to the inclusion of the Court of Appeal number in the subject line of the email. The email asserted that Chateau Constructions' notice of motion must be dismissed.
When the matter was called on for hearing, I asked Mr Ilkovski of Counsel, who appears for Chateau Constructions, whether he had an affidavit demonstrating that the amended notice of motion had been served. He relied upon an affidavit of his solicitor, Mr Loel, sworn on 1 July 2013.
The original notice of motion, according to Mr Loel's affidavit, was forwarded to Dr and Ms Zepinic under cover of a letter of 29 May 2013, to an address at XXXX Little Thames Walk, London. The amended notice of motion was forwarded to Dr and Ms Zepinic at the same address, under cover of a letter of 17 June 2013.
A notice of motion is not one of those documents referred to in the Supreme Court Rules or the Uniform Civil Procedure Rules ("UCPR") as one which must be personally served. Subject to the rules, UCPR 10.5(b) provides that a document may be served on a person by posting a copy to the person's address for service. The only address for service in relation to the Court of Appeal proceedings insofar as Dr and Ms Zepinic are concerned appears in the summons they filed in February 2010 seeking leave to appeal. It is sufficient to note (having regard to identity fraud issues) that, while they nominated an address for service in the United Kingdom, that address was not that to which Mr Loel forwarded the documents to which I have referred.
Chateau Constructions now seeks an order pursuant to UCPR 10.6(2), that service of the amended notice of motion by it being mailed to the Little Thames Walk address be taken to constitute sufficient service on Dr Zepinic, on the basis that he acknowledged, in terms which fall within UCPR 10.6(1), that that was an address at which he could be served.
Mr Ilkovski relies, in this respect, upon the transcript of proceedings before Nicholas J on 3 May 2013, to which Mr Loel refers in paragraph 49 of his affidavit of 29 May 2013 as exhibit "AL6", and at which Dr Zepinic appeared in person.
There was a contest in those proceedings about whether Dr Zepinic had received a copy of the motion which was before Nicholas J. Relevantly, in the course of those proceedings, according to the transcript, which is part of exhibit "AL6" to Mr Loel's affidavit, Nicholas J sought clarification from Dr Zepinic about addresses to which any communications could be sent, on which occasion Dr Zepinic informed the Court of the Little Thames Walk address.
In my view, that evidence is sufficient to establish that the forwarding under cover of the letters referred to in Mr Loel's affidavit of the original notice of motion and the amended notice of motion to the Little Thames Walk address should be taken to constitute sufficient service for the purpose of the amended notice of motion, and I so order. On that basis, Chateau Constructions seeks to proceed only against Dr Zepinic in relation to the amended notice of motion.
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