Gate Gourmet Australia Pty Ltd (In liq) v Gate Gourmet AG [2002] NSWSC 727

New South Wales Supreme Court

CITATION : Gate Gourmet Australia Pty Ltd (In liq) v Gate Gourmet AG [2002] NSWSC 727 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50180/01 HEARING DATE(S) : 7 and 9 August 2002 JUDGMENT DATE : 9 August 2002

Gate Gourmet Australia Pty Ltd (In liq) (P) Gate Gourmet AG (D1) Gate Gourmet (Holdings) Pty Ltd (D2) PARTIES : Odd Gunnar Engebretsen (D3) Lars Fredrik Larsen (D4) Henning Boysen (D5) Lucas Grolimund (D6) JUDGMENT OF : Young CJ in Eq

COUNSEL : C R C Newlinds (P) SOLICITORS : Clayton Utz (P) CATCHWORDS : PROCEDURE [91]- Service- Initiating process- Whether substituted service may be ordered for overseas defendants- Provisional order made. LEGISLATION CITED : Supreme Court Rules, Part 11 r8 Fry v Moore (1889) 23 QBD 395 CASES CITED : Re Tucker [1987] 1 WLR 928 Wilding v Bean [1891] 1 QB 100 DECISION : Orders made.

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

YOUNG CJ in EQ

Friday 9 August 2002

50180/01 – GATE GOURMET AUSTRALIA PTY LTD (IN LIQ) v GATE GOURMET AG JUDGMENT 1 HIS HONOUR: This is an application to review a decision of a Deputy Registrar, who made the following requisition when substituted service against the first, third, fourth and fifth defendants was sought: "It is not possible to make an order for substituted service until the outcome of personal service on the defendants concerned". 2 With due respect to the Deputy Registrar who made that direction, there was not sufficient enquiry into the facts of this particular case. 3 The facts show that this is an Australian dispute where the defendants happen to be corporations incorporated outside Australia, or persons resident in other countries. Of course, prompt personal service cannot be effected on them until the rather convoluted process of obtaining the appropriate certificates from the Attorney General has been gone through, and the evidence suggests that that process, without any fault of the plaintiff, has taken longer than it normally does take. 4 Accordingly, if the only matter was the matter that troubled the Deputy Registrar, I should make the order for substituted service. 5 However, there is another point, and that is whether substituted service can ever be ordered where the defendants are outside the jurisdiction, other than perhaps the case where they have deliberately left the jurisdiction to avoid service. 6 There are a series of English decisions, such as Fry v Moore (1889) 23 QBD 395; Wilding v Bean [1891] 1 QB 100 and Re Tucker [1987] 1 WLR 928, which suggest that such an order cannot be made. 7 I have read those cases. The only mention that I have found of them in Australia is in some Queensland and Western Australian authorities where they are mentioned without disapproval, but without any ringing endorsement either. 8 The English system of having different endorsements for writs to be served inside and outside the country may mean that these cases are distinguishable. Modern Australian authority tends to suggest that if one has a dispute in which Australia is the appropriate forum, then the only real problem about making sure that service is effected is that there should not be any undue trespass into the comity between this country and other foreign nations. I considered those matters in an allied situation in ASIC v Sweeney (No 2) [2000] NSWSC 1211. 9 The material strongly suggests that the persons proposed to be served have instructed a Sydney firm of solicitors to watch their interests, but have been very careful not to instruct those solicitors to accept service. This makes me think that if I were to order substituted service in the way sought by the plaintiff, and allow three weeks after service for the persons purportedly served to move under Pt 11 r 8 of the Supreme Court Rules to set aside the service, then the court would be likely to have reasoned arguments on both sides of the matter, after which it could make a decision as to whether to follow or not follow those English cases. There would be no prejudice suffered by the defendants, and there would be no encouragement to foreign people, who are involved in an Australian dispute, to get the best of both worlds by watching what is happening, but never entering the arena. 10 Accordingly, I make the orders in the short minutes, which I have initialled and dated and which will be placed with the papers, with the proviso that the defendants may by notice of motion filed no later than 31 August 2002 move a judge in the Commercial section of this Division to set aside the service under Pt 11 r 8.