McKENZIE v VILLATA [1995] NSWCA 284

McKENZIE v VILLATA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 27 February 1995

[1995] NSWCA 284

Mahoney JA. I have asked of the applicant what basis there is for my accepting service of the notice of motion to strike out the appeal at an address which is, as far as it can be seen, merely an address nominated by the solicitor who is no longer acting in the letter in which the solicitor indicated that he would no longer be acting. That letter is Exhibit A to the affidavit of Jeremy Neil Glass of 10 December 1994 and bears the date 17 November 1994.

A notice of motion and the affidavit have been served at that address by registered post. I feel difficulty with accepting that as proper service of the notice of motion. The significance of striking out the appeal may be considerable. It may be that the striking out is justified, but if the appeal is struck out the rights of the appellant will be irretrievably affected. In the circumstances, I am not satisfied that, under the rules, service by ordinary post at that address is sufficient service of such a notice of motion.

I have been asked to stand the matter over for two weeks to allow the matter to be further investigated, and I will do so. The costs of today are reserved.

If, in fact, the satisfactory evidence cannot be obtained, it may be that the Registrar would, on proper notice, be able to make an order for substituted service, which would avoid unnecessary expense, and that matter may be able to be looked at.

In the circumstances, the only order I make at the moment is that the proceeding be stood over for two weeks.

Orders accordingly.