Zervas v Burkitt [2019] NSWCA 112

Zervas v Burkitt [2019] NSWCA 112

Leave to proceed with the appeal and cross-appeal against a company in liquidation was granted as the dispute involved serious issues and ordinary litigation was the more appropriate forum. Substituted service was ordered as personal service on Mr Amro was impracticable, and service by post and by leaving documents at his address was likely to bring the proceedings to his attention.

Parties
Appellant / Second Cross Respondent: Fotis Zervas; First Respondent / Cross Appellant: Miles Burkitt; Second Respondent / Third Cross Respondent: Michael Amro; Third Respondent / First Cross Respondent: Ultimate Car Rentals Australia Pty Ltd (in liquidation)
Jurisdiction
Australia
Judgment Date
17 May 2019
Procedural Posture
Appeal and Cross Appeal / Procedural Orders Prior to Substantive Determination
Outcome
Applications for leave to proceed and for substituted service granted.
Legal Topics
Leave to Proceed Against Company in Liquidation, Substituted Service, Corporations Act S 471 B, Proof of Debt Versus Litigation, Appellate Civil Procedure
Civil Procedure Leave to Proceed Against Company in Liquidation Substituted Service Corporations Act S 471 B Proof of Debt Versus Litigation Appellate Civil Procedure

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Parties

Fotis Zervas

Appellant / Second Cross Respondent

Miles Burkitt

First Respondent / Cross Appellant

Michael Amro

Second Respondent / Third Cross Respondent

Ultimate Car Rentals Australia Pty Ltd (in liquidation)

Third Respondent / First Cross Respondent

Procedural Posture

Appeal and Cross Appeal / Procedural Orders Prior to Substantive Determination

Legal Issues

  1. 1 Whether leave to proceed with appeal and cross-appeal against a company in liquidation should be granted under s 471B of the Corporations Act 2001 (Cth)
  2. 2 Whether orders for substituted service of the notice of appeal and cross-appeal on Mr Amro should be granted

Ratio Decidendi

Leave to proceed with the appeal and cross-appeal against a company in liquidation was granted as the dispute involved serious issues and ordinary litigation was the more appropriate forum. Substituted service was ordered as personal service on Mr Amro was impracticable, and service by post and by leaving documents at his address was likely to bring the proceedings to his attention.

Court Disposition

Applications for leave to proceed and for substituted service granted.

Orders

  • Leave granted to the appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation).
  • Leave granted to the cross-appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the cross-appeal against Ultimate Car Rentals Australia Pty Ltd (in liquidation).