Agnish Pty Limited v Folio Invest Pty Limited (No 2) [2019] FCA 1041

FEDERAL COURT OF AUSTRALIA

Agnish Pty Limited v Folio Invest Pty Limited (No 2) [2019] FCA 1041 File number: NSD 1006 of 2018

Judge: GRIFFITHS J

Date of judgment: 2 July 2019

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for deemed service and substituted service under rr 10.48 and 10.49 of the Federal Court Rules 2011 (Cth) – where the third respondent resides in Sierra Leone – where four attempts to personally serve the third respondent in Sierra Leone were unsuccessful – where the third respondent has previously filed a defence and an affidavit on behalf of the first and second respondents – interlocutory application granted – orders made in accordance with the applicant's short minutes of order

Legislation: Federal Court Rules 2011 (Cth) rr 10.48, 10.49

Date of hearing: 2 Jul 2019

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 3

Counsel for the Applicant: Mr J R Anderson

Solicitor for the Applicant: Lazarus Legal Group Pty Limited

Counsel for the Respondents: The respondents did not appear

ORDERS NSD 1006 of 2018

BETWEEN: AGNISH PTY LIMITED (ACN 082 620 559) Applicant

AND: FOLIO INVEST PTY LIMITED (ACN 150 171 252) First Respondent

FOLIO PROPERTY PTY LIMITED (ACN 144 632 413) Second Respondent

BRADLEY CLIVE JAMES BILBIE Third Respondent

JUDGE: GRIFFITHS J DATE OF ORDER: 2 July 2019

THE COURT ORDERS THAT:

1. Pursuant to r 10.48 of the Federal Court Rules 2011 (Cth) the following documents be taken to have been served on the third respondent, Bradly Clive James Bilbie, on the following dates: (a) the originating application dated 12 June 2018 be taken to have been served on 18 July 2018; (b) the statement of claim dated 12 June 2018 be taken to have been served on 18 July 2018; (c) the affidavit of Arun Aggarwal affirmed on 19 February 2019 and exhibit AA-1 to that affidavit be taken to have been served on 26 April 2019, (together, the Documents). 2. Pursuant to r 10.49 of the Federal Court Rules 2011 (Cth), the applicant may serve copies of: (a) the amended interlocutory application dated 21 August 2018; and (b) the orders made by Griffiths J in this proceeding on 11 December 2018, by email to (c) brad.bilbie@folioinvest.com.au; and (d) bradbilbie@gmail.com 3. By 8:00pm (AEST) on 2 July 2019, the applicant is to serve a copy of these orders and on the respondents by email to: (a) brad.bilbie@folioinvest.com.au; and (b) bradbilbie@gmail.com 4. By 8:00pm (AEST) on 5 July 2019, the applicant is to serve a copy of the reasons for judgement for these orders on the respondents by email to: (a) brad.bilbie@folioinvest.com.au; and (b) bradbilbie@gmail.com 5. Until, such time as the third respondent files a notice of address for service, or further order, service by the applicant of any further documents in this proceeding may be effected by the applicant sending a copy of such documents to the third respondent by email to the email address brad.bilbie@folioinvest.com.au and bradbilbie@gmail.com. 6. The costs of the interlocutory application filed on 1 July 2019 be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

GRIFFITHS J: 1 The applicant moves on an interlocutory application filed on 1 July 2019, supported by an affidavit of its instructing solicitor, Mr Wilyen Aguino, dated 28 June 2019. The Court has also been assisted by helpful submissions made by Mr Anderson on behalf of the applicant. The Court is satisfied, having regard to the material before it, and the submissions made by Mr Anderson, that orders should be made in accordance with the short minutes of order. In substance, the applicant seeks an order under r 10.48 of the Federal Court Rules 2011 (Cth) (FCRs 2011) deeming that service has been effected on the third respondent in respect of three documents which are identified in paragraph 1 of the short minutes of order. I am satisfied that, for the purposes of r 10.48, it has proven not to be practicable to serve the documents in person on the third respondent in Sierra Leone: four such attempts at personal service have been unsuccessful. 2 The Court is also satisfied on the basis of the evidence before it that the three documents in question have been brought to the attention of Mr Bilbie by reference, in particular, to correspondence received from the registered office of the first and second respondents, and also by reference to Mr Bilbie's own actions in filing both a defence and an affidavit in the proceeding. Having regard to the events that have occurred and the difficulties of personal service on Mr Bilbie, the Court is also satisfied that an order for substituted service should be made in accordance with r 10.49 of the FCRs 2011. 3 The Court will make an order in accordance with order 3 of those sought by the applicant requiring the applicant to serve a copy of these orders on the respondents by email to the two known addresses associated with Mr Bilbie. The Court will also direct that a copy of these brief reasons for judgment be served on the respondents by email to the same addresses by no later than 8 pm on 5 July 2019, by which time these ex tempore reasons for judgment will have been transcribed. Other than that, the Court makes orders in accordance with the short minutes of order, initialled by me. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate: Dated: 2 July 2019