Zorbas v Titan Properties (Aust) - [2005] NSWSC 486

CITATION:
Zorbas v Titan Properties (Aust) [2005] NSWSC 486

HEARING DATE(S): 19 May 2005

JUDGMENT DATE :

19 May 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Informal service confirmed

CATCHWORDS:
PRACTICE - confirmation of informal service

LEGISLATION CITED:
Supreme Court Rules 1970

CASES CITED:
Elcham v Darling Island Sydney [2005] NSWSC 448
WFM Motors Pty Limited v Maidwell (Bryson J, 23 April 1993, unreported)
Zorbas v Titan Properties (Aust) [2005] NSWSC 213
Zorbas v Titan Properties (Aust) [2005] NSWSC 440

PARTIES:
Peter Zorbas - Plaintiff
Titan Properties (Aust) Pty Ltd - First Defendant
Delta Constructions (Aust) Pty Ltd - Second Defendant
Titan Projects Pty Ltd - Third Defendant

FILE NUMBER(S):
SC 5505/04

COUNSEL:
A J McInerney, exparte - Plaintiff

SOLICITORS:
Magney & Magney - Plaintiff

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 19 MAY 2005

5505/04 PETER ZORBAS v TITAN PROPERTIES (AUST) PTY LTD & 2 ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application under Part 9 rule 11 Supreme Court Rules 1970 for confirmation of informal service. That rule provides:

“Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.”

2 On 14 March 2005 I gave a judgment in this matter and made orders for specific performance of a contract for sale of land at the suit of the vendor: Zorbas v Titan Properties (Aust) [2005] NSWSC 213.

3 A further hearing occurred on 5 May 2005. By that time the date on which I had ordered the contract to be completed had already passed, but the contract was still not completed. The hearing on 5 May 2005 involved an application by the plaintiff for a more specific order than the one which had originally been granted, requiring specific performance of the contract. In Zorbas v Titan Properties (Aust) [2005] NSWSC 440 I gave reasons why it was appropriate to make that order.

4 The present application is one which seeks confirmation of informal service of the orders made on 11 May 2005, following the hearing of 5 May 2005. It seeks that confirmation concerning service upon the directors of the company, the first defendant, which has been ordered to specifically perform the contract. As outlined in my judgment of 5 May 2005, the plaintiff is pursuing a plan of seeking to enforce the orders by committal or sequestration of the property of the directors of the defendant. Part 42 rule 6(2) Supreme Court Rules 1970 permits…

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 Zorbas v Titan Properties (Aust)

Details

AGLC: Zorbas v Titan Properties (Aust) [2005] NSWSC 486
Case: [2005] NSWSC 486
Decision Date: 19 May 2005

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Zorbas brought a claim against Titan Properties (Aust) for breach of contract. The plaintiff alleged that the defendant had failed to complete the sale of a property as per the terms of a written contract. The case involved questions regarding the validity of the service of the originating process and whether the court had jurisdiction to hear the matter. The central issue was whether the informal service of the court documents on the defendant was sufficient to grant the court jurisdiction and if the court could confirm this informal service under the relevant legislation.

The court examined the statutory provisions governing service of court documents and determined whether the informal service complied with the necessary legal requirements. The court concluded that, despite the informal service, the defendant had been made aware of the proceedings and had not objected to the court's jurisdiction on this basis. The court held that the informal service was effective as it met the criteria for proper service under the applicable legislation, and it was in the interests of justice to confirm the service. The court found that it had jurisdiction to hear the case, and the informal service did not invalidate the proceedings.

The Supreme Court confirmed the informal service of the originating process and held that it was valid. The court emphasised the importance of ensuring proper service of court documents in future proceedings but found that, in this instance, the informal service was sufficient to confer jurisdiction. The court proceeded to hear the merits of the case, finding in favour of the plaintiff on the issue of breach of contract. The final orders included a declaration that the defendant had breached the contract, an order for the defendant to complete the sale of the property as per the contract terms, and an order for the defendant to pay damages to the plaintiff for the breach.

Orders