Khanna v Gunesekera & Ors [2018] NSWDC 133

Khanna v Gunesekera & Ors [2018] NSWDC 133

The plaintiffs did not establish personal or otherwise due service on the first and second defendants. Service on the defendants' solicitor in ACT proceedings without prior consent, arrangement or appropriate notation, and purported service at ACT premises when the defendants were in Sri Lanka and not keeping house there, did not comply with UCPR Pt 10 or the applicable Service and Execution of Process Act requirements. The District Court therefore lacked jurisdiction to proceed against the first and second defendants unless due service was effected, so the purported service was set aside. However, the pleadings disclosed threshold arguable causes of action and were not so unintelligible...

Jurisdiction
Australia
Judgment Date
25 May 2018
Procedural Posture
Civil Proceedings / Interlocutory Notices of Motion Concerning Service, Strike Out and Leave to Amend
Outcome
The first and second defendants' motion was upheld in part by setting aside purported service, but their strike out request was declined. The plaintiffs were granted leave to file and serve an amended statement of claim, while their motions were otherwise dismissed apart from that leave.
Legal Topics
['due Service of Originating Process' 'interstate Service' 'jurisdiction of the District Court' 'setting Aside Service' 'strike Out for No Reasonable Cause of Action or Abuse of Process' 'leave to File and Serve Amended Statement of Claim']
['practice and Procedure' 'civil Procedure' 'residential Tenancies' 'tort' 'contract'] ['due Service of Originating Process' 'interstate Service' 'jurisdiction of the District Court' 'setting Aside Service' 'strike Out for No Reasonable Cause of Action or Abuse of Process' 'leave to File and Serve Amended Statement of Claim']

Case Brief

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Procedural Posture

Civil Proceedings / Interlocutory Notices of Motion Concerning Service, Strike Out and Leave to Amend

Legal Issues

  1. 1 ['Whether the plaintiffs provided acceptable proof of due interstate service of originating process according to the Service and Execution of Process Act 1992 and UCPR Pt 10.' 'Whether the pre-conditional jurisdictional requirements of s 47(1) of the District Court Act 1973 were satisfied for the first and second defendants.' 'Whether the purported service of originating process on the first and second defendants should be set aside.' "Whether the plaintiffs' proceedings against the first and second defendants should be struck out pursuant to UCPR r 14.28." 'Whether the plaintiffs should have leave to file and serve an amended statement of claim.']

Ratio Decidendi

The plaintiffs did not establish personal or otherwise due service on the first and second defendants. Service on the defendants' solicitor in ACT proceedings without prior consent, arrangement or appropriate notation, and purported service at ACT premises when the defendants were in Sri Lanka and not keeping house there, did not comply with UCPR Pt 10 or the applicable Service and Execution of Process Act requirements. The District Court therefore lacked jurisdiction to proceed against the first and second defendants unless due service was effected, so the purported service was set aside. However, the pleadings disclosed threshold arguable causes of action and were not so unintelligible...

Court Disposition

The first and second defendants' motion was upheld in part by setting aside purported service, but their strike out request was declined. The plaintiffs were granted leave to file and serve an amended statement of claim, while their motions were otherwise dismissed apart from that leave.

Orders

  • ["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;" "The request by the first and second defendants that the plaintiffs'...