Bingley-Pullin v Montgomery [2018] NSWSC 1308

Supreme Court New South Wales

Medium Neutral Citation: Bingley-Pullin v Montgomery [2018] NSWSC 1308 Hearing dates: 16 August 2018 Date of orders: 16 August 2018 Decision date: 16 August 2018 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW), grant leave to the plaintiff to proceed against the defendant. (2) Direct that the plaintiff may apply for default judgment in accordance with the usual practice of the Court in conformity with the Uniform Civil Procedure Rules 2005 (NSW). Catchwords: CIVIL PROCEDURE – Application for leave to proceed - proceedings commenced in NSW - served overseas - arguable case - forum whether leave should be granted Legislation Cited: Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW), Sch 6, rr 11.7, 11.8AA Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41; Rossiter v Core Mining Limited [2015] NSWSC 360 Yoon v Lee [2017] NSWSC 1338 Category: Procedural and other rulings Parties: Robert Bingley-Pullin (Plaintiff) Mark Montgomery (Defendant) Representation: Counsel: S Balafoutis (Plaintiff)

Solicitors: Wight & Strickland (Plaintiff) File Number(s): 2018/131084

EX TEMPORE Judgment – REVISED 1. I am dealing with an application for leave to proceed in proceedings initiated in this Court, but served in Singapore. The application is made under r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). 2. Mr Balafoutis of counsel has helpfully drawn my attention to the decision of Darke J in Yoon v Lee [2017] NSWSC 1338, where his Honour considered the rule and applied the principles identified by Adamson J in Rossiter v Core Mining Limited [2015] NSWSC 360. 3. Adamson J in turn derived the relevant principles from Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 ("Agar v Hyde"), which was concerned with the previous rule under the Supreme Court Rules 1970 (NSW). However, both Adamson J and Darke J are of the view that the matters informing the discretion to be exercised under the current rule remain the same, and I will follow their Honours. 4. The proceedings were commenced by statement of claim filed in the registry on 26 April 2018. They are debt recovery proceedings, the scope of which could comfortably be dealt with in the Local Court, except for the consideration that the defendant now appears to be a resident of Singapore. 5. The four considerations Adamson J derived from Agar v Hyde are as follows: 1. the defendant has been properly served; 2. the claims in the originating process fall within Schedule 6 to the UCPR; 3. the plaintiff has an arguable case, being one that would be sufficient to survive an application for summary judgment; and 4. this Court is not a clearly inappropriate forum. 1. Turning to the evidence in the case, I am satisfied that the defendant has been properly served. In that regard, I accept the affidavit of service of Mohamad Amin Bin Mohamed Ali, affirmed on 7 May 2018 and witnessed by a notary public, a Mr Hock, in the Republic of Singapore. Mr Ali says that he served the statement of claim and a letter from the plaintiff's solicitors dated 24 April 2018 on the defendant at the address given in the statement of claim. At the time of service the defendant acknowledged that he was the person described in the statement of claim. 2. There is one particular matter concerning service in accordance with the UCPR which I raised with learned counsel, and that is that UCPR 11.7 requires service of a notice in the approved form, together with the originating process. The purpose of the notice is to inform the defendant of the scope of the Court's jurisdiction, the grounds alleged by the plaintiff to found jurisdiction, and the defendant's right to challenge service or the jurisdiction of the Court, or to file a conditional appearance. 3. As things presently stand, there is a form prescribed for the purpose of UCPR 11.7, it is Form 161. That form was not served with the statement of claim. I raised this with Mr Balafoutis and stood the matter down while he considered that matter. He submits that the form may be a new one, and may not have been in force, as it were, as at May of this year. Neither counsel nor I are certain of that. 4. It does seem to me, however, that the letter of Mr Balafoutis' instructing solicitor substantially complies with the requirements of the UCPR. It identifies the scope of the Court's jurisdiction by reference to Schedule 6. It sets out the basis upon which the plaintiff asserts that the Court has jurisdiction in the matter, and informs the defendant of his right to challenge service and jurisdiction, but perhaps not his right to file a conditional appearance. 5. It seems to me that as he has been given advice about his right to challenge service and jurisdiction, the procedural requirement of filing a conditional appearance to avoid acquiescence in jurisdiction, I suppose, is a matter of no particular moment in the circumstances, and I am satisfied that if it was necessary to serve a document complying with Form 161 at the time of the service of the statement of claim, there has in fact been substantial compliance with the rule and, to the extent necessary, I dispense with any other requirements. I am satisfied that the defendant has been properly served. 6. I am also satisfied that the claims in the originating process fall within Schedule 6. On the evidence of the plaintiff, contained in his affidavit of 2 August 2018, the loans, the subject of the claim for recovery, were advanced pursuant to loan agreements made in New South Wales. At the time the loans were made I am satisfied the defendant resided in the Sydney suburb of Cremorne, and although the original loan agreements have apparently been lost, there are companion security agreements which provide that the applicable law is the law of New South Wales. 7. The plaintiff has given secondary evidence of the contents of the lost documents, stating that they too contained that stipulation as to the governing law. The loans were repayable upon demand, and there is evidence of demand and non-compliance. It seems to me that the requirement of payment and discharge of the debt under the agreements required payment in New South Wales, and that is consistent with the evidence in the plaintiff's affidavit about a previous part payment by electronic transfer to his bank account here. 8. I am satisfied on that evidence that the plaintiff's case is such that an application for summary dismissal could readily be resisted, doubtless it is stronger than that. I am also satisfied that this Court is not a clearly inappropriate forum. In saying that, I am not satisfied that the Supreme Court, or another court of the Republic of Singapore would be more appropriate. 9. In the circumstances, I am satisfied that the plaintiff has established grounds entitling him to an order under UCPR 11.8AA for leave to proceed with the application. 10. Mr Balafoutis has only pressed prayer 1 in the notice of motion filed on 7 August 2008, and I will direct that any application for default judgment may be made under the rules in the usual way. 11. My orders are: 1. Under rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW), grant leave to the plaintiff to proceed against the defendant. 2. Direct that the plaintiff may apply for default judgment in accordance with the usual practice of the Court in conformity with the Uniform Civil Procedure Rules 2005 (NSW).