In the matter of Ichor Group Holdings Pty Limited (in liquidation) [2020] NSWSC 290

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Ichor Group Holdings Pty Limited (in liquidation) [2020] NSWSC 290 Hearing dates: 23 March 2020 Date of orders: 23 March 2020 Decision date: 23 March 2020 Jurisdiction: Equity - Corporations List Before: Rees J Decision: Orders made for substituted service Catchwords: Substituted service – director gives non-existent address to ASIC – non-existent address a variation on his parents' address – service on parents likely to come to his attention Legislation Cited: Uniform Procedure Rules 2005, r 10.14 Category: Principal judgment Parties: Ichor Group Holdings Pty Ltd (in liq) (First Plaintiff) Christian Sprowles t/as and Michael Hogan as joint and several liquidators of Ichor Group Holdings Pty Ltd (Second Plaintiff) IC4 Investments Pty Ltd (First Defendant) Constantinos Filis (Second Defendant) Representation: Counsel: Mr C Adair (Plaintiffs) No appearance (First Defendant) No appearance (Second Defendant)

Solicitors: Mills Oakley (Plaintiff) File Number(s): 2020/39345

EX TEMPORE Judgment 1. HER HONOUR: By Interlocutory Process filed on 19 March 2020, the plaintiffs seek orders for substituted service in respect of the second defendant, Constantinos Filis. Mr Filis was a director of the first plaintiff, Ichor Group Holdings Pty Ltd (in liquidation). The liquidator has had great difficulty serving the Originating Process on Mr Filis, as well as a Statement of Claim in District Court of New South Wales proceedings. 2. Mr Filis has provided a number of addresses to the Australian Securities and Investments Commission (ASIC) over the years, the most common of which is the address of his parents at a house in Bardwell Park. Mr Filis is some 48 years of age. 3. In 1999, Mr Filis was appointed as director and secretary of Kostaki Investments Pty Ltd, and gave his address as that in Bardwell Park. 4. In 2006, Mr Filis was appointed a director and secretary of Ponero Pty Ltd, and again gave his address as that in Bardwell Park. 5. In 2015, Mr Filis was appointed a director of the first plaintiff, Ichor Group Holdings, and gave the address in Bardwell Park. 6. In 2016, Mr Filis was appointed a director of Ichor Constructions Pty Ltd and gave an address of a unit in Zetland. In 2018, Mr Filis was appointed as secretary of Ichor Constructions Pty Ltd and, again, gave his address as the unit in Zetland. However, a private investigator has recently attended at the Zetland address and it is currently tenanted by another family. The process server was advised by a female resident that Mr Filis was the previous tenant and the new family had moved in two months ago. No forwarding address was known. Thus, Mr Filis appears to have no continuing association with the Zetland address. 7. In November 2018, the second plaintiffs were appointed as liquidators of the first plaintiff. A month later, in December 2018, Mr Filis was appointed as a director and secretary of Tengelo Constructions Pty Ltd. Mr Filis' address as notified to ASIC was the same street address as the Bardwell Park property but, this time, the suburb given for that street address was Bexley North. The plaintiff's solicitor, Joseph Pokoney, has undertaken a location records search of the Bexley North address using the NSW Land Registry Services Online. There is no address matching the Bexley North address. Mr Pokoney has done searches on Google Maps and observed that Bexley North and Bardwell Park have the same post code and are adjacent suburbs. On this basis, Mr Pokoney believes that the property described at the address in Bexley North is the same as that in Bardwell Park. That seems to be correct. 8. In November 2019, a Statement of Claim was filed in the District Court of New South Wales naming Mr Filis as the first defendant. Efforts were made to serve the Statement of Claim on Mr Filis. On 5 and 11 December 2019, the process server attended at the home of Mr Filis' parents at the Bardwell Park address. The defendant's father verified Mr Filis' address but advised that Mr Filis was currently overseas and was expected back before Christmas although an actual date had not been confirmed. His parents were expecting him just before Christmas, however there was a chance he would remain overseas. 9. The process server returned to the address on 10 December 2019 and again spoke with Mr Filis' parents. They advised that Mr Filis had not returned to the address and was no longer living there. They knew Mr Filis' whereabouts, but refused to assist in any way. 10. On 6 February 2020, these proceedings were commenced. The plaintiffs seek orders against Mr Filis and others for breach of directors duty and in relation to voidable transactions. 11. On 3 March 2020, process servers attended at two addresses in Kingsgrove where the liquidators believed Mr Filis may be living. Service at these two addresses were unsuccessful, and the process server was unable to obtain any information from the neighbours as to where Mr Filis might be living. 12. Rule 10.14 of the Uniform Procedure Rules 2005 provides: Substituted and informal service generally (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. … (4) Service in accordance with this rule is taken to constitute personal service. 1. The evidence indicates that it is not reasonably practicable to serve Mr Filis at any address which he has notified to ASIC over the years except for the address of his parents in Bardwell Park. This is the most consistently cited address for Mr Filis, and, in December 2018, seems in reality to have been the address which he gave to ASIC in respect of Tengelo Constructions Pty Ltd. 2. It is apparent from the process server's recent attendances upon Mr Filis' parents in December 2019 that Mr Filis has a continuing association with that property and, unsurprisingly, with his parents. I conclude that if the Originating Process is served at Mr Filis' parents' home, then the document will be brought to his notice. 3. It is regrettable that the plaintiffs have been put to additional costs of seeking these orders today, and it also regrettable that Mr Filis seems to have gone to such lengths to avoid being served in these proceedings. For these reasons I make the short minutes of order which are initialled by me, dated today and placed with the papers.