CASTAGNA and ANOR v CONCERIA PELL MEC SPA [1996] NSWCA 94

CASTAGNA v CONCERIA PELL MEC SPA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, HANDLEY JA, WADDELL AJA 14-15 March, 15 March 1996 [1996] NSWCA 94

PRIVATE INTERNATIONAL LAW — service — jurisdiction — order granting leave to proceed — fundamental and substantial irregularities in notification of hearing date — proper service on a defendant resident out of jurisdiction essential under SCR Pt10 r2 — order granting leave to proceed not properly made — appeal upheld.

PRACTICE — irregularity — nullity.

Conceria Pell Mec SpA, an Italian company sued the appellant, a resident of California, and other defendants in the Commercial Division. The appellant did not enter an appearance or appear at the trial. The plaintiff relied upon an affidavit of service and notification of hearing date to prove service on the appellant. The affidavit of service stated that three documents were served at the appellant's office on 29 January 1992: an amended summons with an expired return date of 29 November 1991; an unsigned and unsealed notice to defendant served outside Australia; and a letter notifying the hearing date dated 28 February 1992 notifying a hearing date on 14 February 1992. These inconsistencies were not drawn to the attention of the trial judge. Dr Castagna appealed against the ex parte judgment on the ground inter alia that the order granting leave to proceed under SCR Pt10 r2 was wrongly made.

HELD: Allowing the appeal: (1) There were fundamental and substantial irregularities in the service of process on the appellant though it was not a nullity. (2) Proper service on a defendant resident out of jurisdiction is essential under SCR Ptl0 12. (3) Had the irregularities been drawn to the attention of the trial judge, he would have been bound to refuse leave to proceed.

ORDERS