Khanna v Gunesekera & Ors [2018] NSWDC 133

District Court New South Wales

Medium Neutral Citation: Khanna v Gunesekera & Ors [2018] NSWDC 133 Hearing dates: 23 February, 13 April, 18 and 21 May 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to UCPR r 10, the notice of motion filed by the first and second defendants on 28 June 2017 is upheld to the extent that the purported service of the plaintiffs' originating process on the first and second defendants is set aside;

2. The request by the first and second defendants that the plaintiffs' proceedings be struck out pursuant to UCPR r 14.28 is declined;

3. The plaintiffs are to pay the costs of the first and second defendants in respect of their motion filed on 28 June 2017 on the ordinary basis unless a party can show an entitlement to some other order for costs;

4. Pursuant to s 64(1)(b) of the Civil Procedure Act 2005, leave is granted to the plaintiffs to file and serve an amended statement of claim;

5. The plaintiffs and the first and second defendants are to pay their own costs in relation to the plaintiffs' motions filed on 12 February 2018 and 23 March 2018, apart from Order (4) above, are otherwise dismissed;

6. The exhibits may be returned;

7. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: PRACTICE & PROCEDURE – whether plaintiffs have provided acceptable proof of due interstate service of originating process according to the requirements of the Service and Execution of Process Act 1992 and UCPR r 10 – whether pre-conditional jurisdictional requirements of s 47(1) of the District Court Act 1973 are satisfied – defendants' motion to set aside service, or alternatively, to strike out plaintiffs' proceedings as an abuse of process – plaintiffs' motion seeking confirmation of claim of due service Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005, s 58, s 64 District Court Act 1973, s 47 Residential Tenancies Act 2010 Service and Execution of Process Act 1992 (Cwth), s 15 and s 16 Service and Execution of Process Regulations 1993 (Cwth), reg 4 Uniform Civil Procedure Rules, Pt 10 Cases Cited: Falls Creek Ski Lifts Pty Ltd v Yee (1995) 37 NSWLR 344 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 McGuirk v University of NSW [2009] NSWSC 1424 Meckliff v Simpson [1968] VR 62 Northam v Favelle Favco Holdings Pty Ltd, Bryson J, unreported, 7 March 1995, BC 9504276 Category: Procedural and other rulings Parties: Sanjeev Khanna (First plaintiff) Geeta Khanna (Second plaintiff) Gerard Sumithra Abeywardane Gunesekera (First defendant) Shalini Gunesekera (Second defendant) Bond Realty Pty Ltd (Third defendant) Representation: Counsel: Dr G O'Shea, amicus curiae, 23 February (Plaintiffs & mention for third defendant) Plaintiffs in person on other dates Mr D Moujalli (First and second defendants)