Yu v Registrar-General of New South Wales [2010] NSWSC 353

New South Wales Supreme Court

CITATION : Yu v Registrar-General of New South Wales [2010] NSWSC 353

HEARING DATE(S) : 15 April 2010

JUDGMENT DATE : 15 April 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 15 April 2010

DECISION : Refer to paras 28 and 29 of judgment.

CATCHWORDS : PRACTICE AND PROCEDURE – service of originating process – whether court has power to dispense with service without substituted service – order for substituted service under rule 10.14 of Uniform Civil Procedure Rules – requirements for substituted service

LEGISLATION CITED : Legal Profession Act 2004 (NSW) Evidence Act 1995 (NSW)

CATEGORY : Procedural and other rulings

Laurie v Carroll (1958) 98 CLR 310 CASES CITED : White v Weston [1968] 2 QB 647 Porter v Freudenberg [1915] 1 KB 857 Chappell v Coyle (1985) 2 NSWLR 73

TEXTS CITED : Dicey, Conflict of Law, 6th ed (1949)

Plaintiff: Hengfeng Yu PARTIES : 1st Defendant: Registrar-General of New South Wales 2nd Defendant: Wun Cheung Chan 3rd Defendant: Council of the Law Society of New South Wales

FILE NUMBER(S) : SC 2010/67122

Plaintiff: J Gormley COUNSEL : 1st Defendant: n/a 2nd Defendant: n/a 3rd Defendant: Ms L Tang

SOLICITORS : Plaintiff: Wang & Associate Solicitors 3rd Defendant: Law Society of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Thursday, 15 April 2010

2010/67122 Hengfeng Yu v Registrar-General of New South Wales & 2 Ors JUDGMENT 1 HIS HONOUR: These proceedings were commenced on 16 March 2010. The plaintiff alleges, and has filed affidavits which unless contradicted would prove, that the second defendant, Mr Chan, defrauded the plaintiff and by forgery became registered as the proprietor of a property in Granville which is beneficially owned by the plaintiff. 2 The affidavits read by the plaintiff establish that the plaintiff retained Mr Chan as his solicitor to purchase the property, that the vendor of the property signed a contract with the plaintiff and executed a transfer of the property in favour of the plaintiff, that the plaintiff provided the purchase price, but Mr Chan registered himself as the owner of the property and forged a transfer for that to be done. 3 The plaintiff deposes that Mr Chan told him that he, Mr Chan, was required to hold the original contract for five years and that he did not know and was not told that the transfer was to be registered. He was unaware that the property for which he paid was registered in Mr Chan's name. It appears that Mr Chan raised moneys on the security of the property by executing a mortgage in favour of Nationwide Capital Pty Limited. Mr Chan's practising certificate has been suspended. 4 In October 2008 a manager was appointed to Mr Chan's practice pursuant to s 623(2) of the Legal Profession Act 2004 (NSW). A claim has been made on the Fidelity Fund. The Fidelity Fund has paid the moneys necessary to discharge the mortgage. 5 The plaintiff's current solicitor now holds the certificate of title to the property which is still registered in the name of Mr Chan. The plaintiff seeks orders for the cancellation of the certificate of title and the issue of a new certificate of title by the Registrar-General in his name. 6 The difficulty in the present application is that Mr Chan has not been served. The plaintiff did not know his whereabouts, or whether he was in Australia when proceedings were commenced. The manager appointed to Mr Chan's practice, a Mr Collins, deposes that it appeared that Mr Chan had occupied part of the first floor of the office premises as his place of residence. It does not seem that he still resides there. 7 Mr Collins spoke to Mr Chan in May 2009 and arranged an appointment which Mr Chan was to attend. Mr Collins has had no further contact with Mr Chan since that conversation and has had no response to his correspondence. Mr Collins has advertised in the Law Society Journal seeking information as to Mr Chan's whereabouts but has not received any reply from anyone to that advertisement. 8 The matter has been placed in the hands of the police. The plaintiff's solicitor deposes that on 22 March 2010 he was told by a Detective Constable Williams that he was in the process of investigating Mr Chan's whereabouts and would be knocking on some doors soon. Detective Constable Williams told the plaintiff's solicitor that: " We have an idea of who to ask but we can't say where he is, he could be overseas by now. " 9 More recently, Detective Constable Williams has told another solicitor in the firm acting for the plaintiff that he has been told by the Department of Immigration that Mr Chan left the country on 13 August 2009 and his whereabouts are currently unknown. Detective Constable Williams said that he would try to find out from the Immigration Department which country Mr Chan is in at the moment, and once located he would talk to his supervisor about seeking an extradition order, but whether that would be practicable would depend on what country he was in. 10 I was told by the plaintiff's solicitor that Detective Williams also conveyed that the Department of Immigration understood that Mr Chan had left Australia for Hong Kong. 11 No order has been made for substituted service. Today the plaintiff seeks the final substantive relief in the statement of claim and seeks an order that service on Mr Chan be dispensed with. 12 The first question is whether there is power to make such an order. The action between the plaintiff and Mr Chan is personal action. It is not an action in rem. In Laurie v Carroll (1958) 98 CLR 310 at 323-324, the High Court quoted with approval from Dicey, Conflict of Law, 6th ed (1949) at 172 that: " The service of the writ or something equivalent thereto is absolutely essential as the foundation of the court's jurisdiction. Where a writ cannot legally be served upon a defendant the Court can exercise no jurisdiction over him. In an action in personam the converse of this statement holds good and wherever a defendant can be legally served with the writ, there the court, on service of being effected, has jurisdiction to entertain an action against him. Hence in an action in personam the rules as to the legal service of a writ define the limits of the court's jurisdiction. Now, a defendant who is in England can always, on the plaintiff's taking proper steps, be legally served with a writ. The service should be personal, but if personal service cannot be effected the court may allow substituted or other service. "