Perpetual Trustees Victoria Limited v Tatjana Erdogan [2010] NSWSC 1037

New South Wales Supreme Court

CITATION : Perpetual Trustees Victoria Limited v Tatjana Erdogan [2010] NSWSC 1037

HEARING DATE(S) : 10 September 2010

JUDGMENT DATE : 10 September 2010

JUDGMENT OF : Garling J

EX TEMPORE JUDGMENT DATE : 10 September 2010

DECISION : Application to set aside the service of originating process is refused.

CATCHWORDS : PRACTICE & PROCEDURE – Substituted service – Application to set aside the service of originating process – Whether order for substituted service was correctly and appropriately made – Court's general discretion to refuse application where applicant has taken an active role in proceedings.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005, r 12.11

CATEGORY : Procedural and other rulings

CASES CITED : Alstom Limited v Sirakas [2010] NSWSC 669

PARTIES : (P) Perpetual Trustees Victoria Limited (D) Tatjana Erdogan

FILE NUMBER(S) : SC 2009/293676

COUNSEL : (P) P. Newtown (D) A. Martin

SOLICITORS : (P) Kemp Strang Lawyers (D) Hancocks Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GARLING J

FRIDAY, 10 SEPTEMBER 2010

2009/293676 PERPETUAL TRUSTEES VICTORIA LIMITED v TATJANA ERDOGAN

EX TEMPORE JUDGMENT

1 HIS HONOUR: Tatjana Erdogan owns a residential investment property at Paddington. In order to purchase it, during 2005, she borrowed $920,000 from Perpetual Trustees Victoria Limited. 2 Perpetual took a mortgage over the Paddington property to secure its financial advance against the possibility that Mrs Erdogan did not pay the interest on the advance or comply with the many other conditions of her loan. Those conditions are to be found in the 64 page document. There were a lot of them. 3 In 2009 and 2010, Mrs Erdogan was beset by a number of personal difficulties and was unable to meet her interest obligations to Perpetual. Perpetual took proceedings, as it was entitled to, served the statement of claim by substituted and not personal service, obtained a default judgment, and took out a writ of possession over the Paddington property. Mrs Erdogan says that she knew nothing at all of the proceedings in this Court until she received notice in July 2010 from the NSW Sheriff ordering that the property be vacated without delay because the Court had ordered that possession of the property be given to Perpetual on 31 July 2010. 4 She immediately instructed lawyers to apply to the Court on her behalf seeking to delay the effect of the order that Perpetual have possession of the property. She also asked that judgment in Perpetual's favour be set aside. She said that she was doing all of this urgently because she had not seen or received the statement of claim which started the proceedings at any time before July 2010. 5 Mrs Erdogan now applies for an order from the Court setting aside the service of the statement of claim upon her. The Rule under which she applies is r 12.11 of the Uniform Civil Procedure Rules 2005. Relevantly it is in this form: "In any proceedings the Court may make any of the following orders on the application of a defendant: