Building Insurers' Guarantee Corporation v Merv Eddie & Ors [2008] NSWSC 195

New South Wales Supreme Court

CITATION : Building Insurers' Guarantee Corporation v Merv Eddie & Ors [2008] NSWSC 195 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28/2/08

JUDGMENT DATE : 7 March 2008

JUDGMENT OF : Rein AJ

DECISION : At [27]

CATCHWORDS : Substituted service of Statement of Claim, Pt.11 r14 UCPR - Application to set aside originating process - Breaches of contract made in NSW - jurisdiction under Schedule 6 of UCPR - Whether substituted service on Australian citizen residing permanently overseas permissible

Part 11, Rule 2; Part 11, Rule 14; Schedule 6; Uniform Civil Procedure Rules LEGISLATION CITED : Civil Procedure Act 2005 Federal Court Rules (Cth)

CATEGORY : Procedural and other rulings

ASIC v Sweeney [2001] NSWSC 114 Myerson v Martin [1979] 3 All ER 667 CASES CITED : Laurie v Carroll (1958) 98 CLR 310 Sheahan v Joye 57 FCR 389 Western Suburb and Notting Hill Permanent Benefit Building Society v Rucklidge [1905] 2 Ch 472

PARTIES : Building Insurers' Guarantee Corporation (Plaintiff) Merv Eddie (1st Defendant)

FILE NUMBER(S) : SC 5121/07

COUNSEL : Mr Lynch (Plaintiff) Mr Cleary (First Defendant)

JUDGMENT

1 HIS HONOUR: The Court has before it two Notices of Motion. The background to the motions is as follows. The plaintiff, which is a statutory corporation, claims entitlement to recover from the defendant sums of money paid by the plaintiff to building owners in respect of a building in Bankstown, in the construction of which building the defendants were involved. The claims include a claim based upon an alleged breach of contract by the defendants and upon a statutory cause of action, and exceed $300,000. The plaintiff, which is in a position akin to an insurer, also claims to be subrogated to right of indemnity given by the defendants to HIH Insurance Ltd. before it went into liquidation.