Capital Performance International Inc v Jenkins [2002] NSWSC 797

New South Wales Supreme Court

CITATION : Capital Performance International Inc v Jenkins [2002] NSWSC 797 revised - 10/09/2002 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4123/02 HEARING DATE(S) : 03/09/02 JUDGMENT DATE : 3 September 2002

Capital Performance International Inc (P) PARTIES : Elwyn Jenkins (D1) Glenda Jenkins (D2) JUDGMENT OF : Young CJ in Eq

COUNSEL : D J Fagan SC (P) SOLICITORS : Holman Webb (P) CATCHWORDS : EQUITY [340]- Mareva orders- Whether and if so when substituted service ordered. PROCEDURE [91]- Substituted service- Mareva order- When ordered. LEGISLATION CITED : Supreme Court Rules Part 42(8) DECISION : Decline order for substituted service.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 3 September 2002

4123/02 –CAPITAL PERFORMANCE INTERNATIONAL INC v JENKINS JUDGMENT 1 HIS HONOUR: Last week Austin J granted a mareva order against the defendants on an ex parte basis. 2 Today, Mr Fagan SC for the plaintiff, informs the Court that for the reasons set out in the affidavit of Jacobus Botes, process server, sworn today, that there has been difficulty in serving his Honour's orders. Mr Fagan applies to extend the orders and for an order for substituted service. 3 As to the first application, in my view when a judge after hearing counsel makes an order of this nature and the only problem is lack of service the second judge should merely extend the order without rehearing the application. Accordingly, I will extend the orders made to 11 September next. 4 As to substituted service, I consider I should reject the application at this stage. It is very rare that it will be appropriate to grant orders for substituted service where a mareva-type order is made. The basal reasons for this position are set out in Gee, Mareva Injunctions and Anton Piller Relief, 4th ed (Sweet & Maxwell, London, 1998) pp 276-7. If there is no compliance with a mareva order the next step is to move for committal under Part 42(8) of the Rules. Unless the Court under Part 42(8)(7) dispenses with service, an order which is extremely hard to obtain, if there has not been personal service of the order or at least personal communication of its effect, an order for committal will not be made. 5 Thus there is little point in granting substituted service unless there is a very clear and deliberate case of the person named in the order keeping house or making service impossible. 6 The affidavit of the process server suggests that the defendants are not at all anxious to be served. On the other hand, they are not keeping house in a technical sense. They come and go from the premises in question and although they are making the process server's life difficult, the evidence has not yet got to the stage where it can be said it is impossible to serve them. 7 Because of the difficulties noted above, a stricter attitude should be taken in this sort of case as opposed to an ordinary case as to when an order for substituted service should be made. 8 Accordingly, I decline to make the order for substituted service at this time though if the evidence of impossibility becomes stronger, a fresh application could be made to the duty judge. 9 I should add that I was not at all impressed in having to wait until 11 am for the affidavit of attempted service to be available. It is happening too often that the court is delayed because routine evidence is not ready when the court commences its sittings. I hope this does not reoccur.