New South Wales Supreme Court CITATION : Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed & ors [2009] NSWSC 207 HEARING DATE(S) : 13 March 2009 JUDGMENT DATE : 27 March 2009 JURISDICTION : Equity Division JUDGMENT OF : Brereton J DECISION : Notice of motion dismissed CATCHWORDS : PROCEDURE - Service of Process –substituted service - whether impracticability of current method of service established - whether method of substituted service proposed is reasonably likely to bring proceedings to defendant's notice (CTH) Australian Securities and Investment Commission Act 2001, s 12CA, s 12CD, s 12DA LEGISLATION CITED : (NSW) Fair Trading Act 1987, s 42 (NSW) Uniform Civil Procedure Rules 2005, r 10.14 CATEGORY : Procedural and other rulings Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525 Chappell v Coyle (1985) 2 NSWLR 73 CASES CITED : Hilaire v Harvey (1951) 68 WN (NSW) 61 Porter v Freudenberg [1915] 1 KB 857; [1914-15] All ER Rep 918 Ricegrowers Co-op Ltd v ABC Containerline NV (1996) 138 ALR 480 Syndicate Mortgage Solutions Pty Ltd (plaintiff/first cross-defendant) Khaled El-Sayed (first defendant/first cross-claimant) Khayrieh El-Sayed (second defendant/second cross-claimant) PARTIES : National Australia Bank Limited (third defendant) Perpetual Trustees Victoria Limited (fourth defendant) Haysam Mouhajar (second cross-defendant) Raymond Mawad (third cross-defendant) Registrar General of NSW (fourth cross-defendant) FILE NUMBER(S) : SC 2585/08 Mr D Knoll (plaintiff/first cross-defendant) COUNSEL : Mr S Diab (sol) (first & second defendants/cross-claimants) Ms K Jones (sol) (third cross-defendant) Leon M Ratner & Associates (plaintiff/first cross-defendant) SOLICITORS : Simon Diab & Associates (first & second defendants/cross-claimants) Colin Biggers & Paisley (third cross-defendant) Legal Services, Dept of Lands (fourth cross-defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST BRERETON J Friday, 27 March 2009 2585/08 Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed JUDGMENT 1 HIS HONOUR: The defendants and cross-claimants, Mr and Mrs El-Sayed, apply for an order for substituted service of their Amended Statement of Cross-claim filed on 15 October 2008 on the second cross-defendant, Haysam Mouhajar, by leaving it at premises known as Platinum One Financial Services, Unit 8, 6 Gladstone Road, Castle Hill ("the Castle Hill address"). In their Amended Cross-claim, Mr and Mrs El-Sayed claim that Mr Mouhajar engaged in misleading and deceptive conduct in contravention of (CTH) Australian Securities and Investment Commission Act, s 12DA, and (NSW) Fair Trading Act, s 42, and unconscionable conduct in contravention of ASIC Act, s 12CA and 12CB, and Fair Trading Act, s 43 - or alternatively was involved in contraventions by the plaintiff and first cross-defendant Syndicate Mortgage Solutions Pty Limited of those provisions - in connection with misrepresentations allegedly made to the El-Sayeds which are said to have induced them to execute various security documents in favour of Syndicate Mortgage Solutions. 2 UCPR r 10.14 provides: (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. 3 The court's power under this rule depends on establishing the impracticability of service in accordance with the rules [Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525; Ricegrowers Co-op Ltd v ABC Containerline NV (1996) 138 ALR 480]. Before making an order under the rule, the Court must be satisfied that the method of substituted service is one which is reasonably likely to bring the proceedings to the notice of the defendant [Porter v Freudenberg [1915] 1 KB 857, 889; Hilaire v Harvey (1951) 68 WN(NSW) 61; Chappell v Coyle (1985) 2 NSWLR 73]. 4 The evidence establishes that during October 2008 Mr Mouhajar could not be found, and thus could not be served personally, at: · the registered address (in Parramatta) of the principal place of business of International Commercial Funding Pty Ltd, where the first defendant had apparently seen him as a broker. However, Mr Mouhajar is not recorded as being, or ever having been, an officer of this corporation; · at two alternative addresses (in Lidcombe and Kings Park), being the addresses shown for him on a personal names extract obtained from ASIC's database of corporations of which he was or had formerly been an officer - including three companies of which he is recorded as a current officer and which have their registered office at the Castle Hill address. 5 On 25 October 2008, service agents for the defendants/cross-claimants left a subpoena for production addressed to APRC Wholesale Lending Pty Ltd at its registered office, which is also at the Castle Hill address. The subpoena was subsequently answered by the production of documents, but the evidence before me does not establish what documents were produced. 6 I am not satisfied that the evidence sufficiently establishes the impracticability of service in accordance with the rules. There is no evidence of the other types of searches and inquiries – including real property, electoral roll, telephone listings, credit reference, and inquiries of occupants of his former addresses – which are usually undertaken to locate persons or establish that they cannot be found. 7 Nor am I satisfied that the evidence establishes that the method of substituted service proposed is reasonably likely to bring the proceedings to the notice of Mr Mouhajar. The only method proposed is leaving the documents at the Castle Hill address. Although Mr Mouhajar is a former officer of a number of APRC companies which also have their registered offices at the Castle Hill address, the evidence does not establish that he had - let alone currently has - any connection with APRC Wholesale Lending. I do not think that it can be inferred, from the circumstance that companies of which he was once an officer use that address as their registered office, that he has such a connection with the address that documents left there are likely to come to his attention. Nor can it be inferred from the production of unspecified documents in answer to the subpoena that there is any present connection between APRC Wholesale Lending, let alone the Castle Hill address, and Mr Mouhajar. 8 On the present state of the evidence I am therefore not prepared to make the order for substituted service as sought. Any further application should be supported by evidence of more extensive attempts to locate Mr Mouhajar, and propose a method or methods (perhaps including advertisement) of service likely to bring the proceedings to his notice. 9 I dismiss the Notice of Motion filed 16 February 2009. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.