Elcham v Darling Island Sydney [2005] NSWSC 448

New South Wales Supreme Court

CITATION : Elcham v Darling Island Sydney [2005] NSWSC 448

HEARING DATE(S) : 6 May 2005

JUDGMENT DATE : 6 May 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Service confirmed

CATCHWORDS : PRACTICE - confirmation of informal service

LEGISLATION CITED : Supreme Court Rules 1970

Simon Elcham - Plaintiff Darling Island Sydney Pty Ltd - First Defendant Warwick Mirzikinian - Second Defendant PARTIES : Robert Melhem - Third Defendant Cavastowe Pty Ltd - Fourth Defendant R W Darling Island Pty Ltd - Fifth Defendant

FILE NUMBER(S) : SC 2613/05

C George - Plaintiff S Raftery - First Defendant COUNSEL : No appearance - Second & Third Defendants M H Southwick - Fourth Defendant C Hagan, Solicitor - Fifth Defendant

Pateman Legal - Plaintiff No Appearance - First Defendant SOLICITORS : No appearance - Second & Third Defendants Mavrakis & Associates - Fourth Defendant Hagan & Co - Fifth Defendant

LOWER COURT JURISDICTION :

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

CAMPBELL J

FRIDAY 6 MAY 2005

2613/05 SIMON ELCHAM v DARLING ISLAND SYDNEY PTY LTD & 4 ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application which is made under Part 9 rule 11 of the Supreme Court Rules 1970, seeking confirmation of service of the summons and statement of claim in these proceedings on the second and third defendants. 2 Part 9, rule 11 provides: "Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order." 3 The second and third defendants are each natural persons. 4 The evidence on the application is extensive. The evidence is best approached in chronological order. 5 The plaintiff in the present proceedings, Simon Elcham, had instructed his present solicitor, Mr Pateman, to act for him in some proceedings other than the present ones. In those other proceedings, Mr Pateman caused to be issued some subpoenas addressed to the second and third defendants. 6 Mr Sibraa, a process server used by Mr Pateman, attempted to serve one of those subpoenas on the second defendant on 26 February 2005. He had been given the address of 1B, Beaconsfield Road, Mosman. On going there, he asked to speak to the second defendant, but was told by the occupant that the second defendant lived next door at 1C Beaconsfield Road. 7 He attended the property at 1C Beaconsfield Road, Mosman, and spoke to a man on an intercom, as access to the front door was prohibited by a gate at the front of the property. The man on the intercom identified himself as being the second defendant. When the process server said that he had a subpoena for that person and asked him to come to the front gate to collect the subpoena, he received the reply, "No, you imbecile". The process server left the subpoena and a cheque for conduct money. 8 On 4 March, Mr Pateman received a document generated by computer, which had no address, no date, and no signature. It consisted of a blank piece of paper on which was typed the words: "This document was found in our garden at 1C Beaconsfield Rd, Mosman. Without reading the contents, the document looks quite important, so I have sent it back to the address on the bottom of the document."