Sleiman v Afeich [2005] NSWSC 992

New South Wales Supreme Court

CITATION : Sleiman v Afeich [2005] NSWSC 992

HEARING DATE(S) : 28 September 2005

JUDGMENT DATE : 28 September 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Warrants for arrest should issue for disobedience of subpoenas.

CATCHWORDS : PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Warrant for arrest for disobedience of subpoena - Circumstances in which warrant will issue although subpoena not personally served.

Civil Procedure Act 2005 ss 14 & 97 LEGISLATION CITED : Uniform Civil Procedure Rules 2005 rr 10.4 & 33.5

Gerar Sleiman (P & XD) PARTIES : Paulette Afeich (1D) Peter Solomon (2D & XC)

FILE NUMBER(S) : SC 1797/04

P M Sibtain (P & XD) COUNSEL : No appearance (1 & 2D & XC)

B J Macree & Co (P & XD) SOLICITORS : No appearance (1 & 2D & XC)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 28 SEPTEMBER 2005

1797/04 GERAR SLEIMAN v PAULETTE AFEICH & ANOR JUDGMENT 1 HIS HONOUR: In this matter I have today executed and issued warrants for the arrest of the two defendants and Bechara Tawk, who is not a party to the suit, although Mareva relief has been granted against him. Warrants have been issued under s 97 of the Civil Procedure Act 2005 ("the CPA") for disobedience of subpoenas which were served upon those persons to attend at court yesterday, which they did not do. 2 There is only one matter which I wish to place on record so that it may be clear for future reference purposes. Rule 33.5 of the Uniform Civil Procedure Rules 2005 ("the UCPR") requires personal service of subpoenas. These subpoenas were issued pursuant to orders made by my brother Brereton on 20 September 2005. His Honour ordered that the defendants need not comply with the subpoenas unless they had been served on the addressees before 5pm on 22 September 2005 by leaving a copy of the subpoenas at specified addresses. This was done. There was no personal service of the addressees. 3 However, although his Honour did not avowedly call in aid either of the provisions which I shall mention, either of the following provisions would have justified his Honour in making the orders that he did concerning service. Those orders may be characterised as either orders for substituted service within r 10.4 of the UCPR or as orders dispensing with a requirement of the rules of court on a specified condition pursuant to s 14 of the CPA. 4 His Honour made those orders and I bear in mind in issuing the warrants that it appears that this is a case in which a large sum of money has been fraudulently diverted and the addressees of the subpoenas, who are all subject to Mareva orders, appear to have made themselves unavailable on a number of occasions to have documents in these proceedings served upon them. In my view, therefore, there was sufficient service in the circumstances of this case for it to be appropriate for warrants to issue.