AMP Bank Ltd v Hutt [2016] NSWSC 1672

AMP Bank Ltd v Hutt [2016] NSWSC 1672

The Court was satisfied that the affidavit evidence met the requirements of r 10.14, that the Defendant was agreeable to service by the proposed methods, that the email address would come to the Defendant's attention, and that the Defendant would not be disadvantaged, particularly because he was an undischarged bankrupt and the trustee did not oppose possession. ASIC v Sweeney (No. 2) was distinguishable, and the cost and delay of normal service outside Australia were unjustified in the circumstances.

Jurisdiction
Australia
Judgment Date
25 November 2016
Procedural Posture
Claim for Possession of Land and Judgment for Debt / Notice of Motion for Dispensation With Personal Service and Substituted Service Outside Australia
Outcome
Notice of Motion granted in terms of prayers 2, 3 and 4; costs reserved.
Legal Topics
['service of Originating Process' 'service Outside Australia' 'substituted Service' 'possession of Land' 'undischarged Bankrupt Defendant']
['civil Procedure' 'property Law' 'bankruptcy'] ['service of Originating Process' 'service Outside Australia' 'substituted Service' 'possession of Land' 'undischarged Bankrupt Defendant']

Case Brief

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Procedural Posture

Claim for Possession of Land and Judgment for Debt / Notice of Motion for Dispensation With Personal Service and Substituted Service Outside Australia

Legal Issues

  1. 1 ['Whether personal service of the Statement of Claim on the Defendant should be dispensed with.' 'Whether substituted service outside Australia by email and pre-paid international post should be ordered.' 'Whether the principle against using substituted service to sidestep obstacles to personal service abroad precluded the orders sought.']

Ratio Decidendi

The Court was satisfied that the affidavit evidence met the requirements of r 10.14, that the Defendant was agreeable to service by the proposed methods, that the email address would come to the Defendant's attention, and that the Defendant would not be disadvantaged, particularly because he was an undischarged bankrupt and the trustee did not oppose possession. ASIC v Sweeney (No. 2) was distinguishable, and the cost and delay of normal service outside Australia were unjustified in the circumstances.

Court Disposition

Notice of Motion granted in terms of prayers 2, 3 and 4; costs reserved.

Orders

  • ['An order that personal service of the Statement of Claim on the Defendant pursuant to r 10.20(2)(a) of the UCPR be dispensed with.' 'An order pursuant to r 10.14 and 10.15 of the UCPR that a copy of the Statement of Claim, together with a copy of this order, be served on the Defendant by sending a copy of the...