Building Insurers' Guarantee Corporation v Merv Eddie & Ors [2008] NSWSC 195

Building Insurers' Guarantee Corporation v Merv Eddie & Ors [2008] NSWSC 195

The Supreme Court has jurisdiction to order substituted service on a defendant who, although outside the jurisdiction at the time of commencement of proceedings, is amenable to service out under Schedule 6 of the UCPR, and where steps have been taken to bring the originating process to the defendant's notice; the earlier District Court order for substituted service is set aside but substituted service is confirmed pursuant to the Supreme Court's powers.

Jurisdiction
Australia
Judgment Date
07 March 2008
Procedural Posture
Application to Set Aside/substituted Service / Interlocutory Determination on Substituted Service/setting Aside Service
Outcome
Orders for substituted service made by the District Court set aside; substituted service on Mr Eddie at 31 Haldon Street Lakemba on 17 August 2007 deemed service in Supreme Court proceedings.
Legal Topics
['substituted Service' 'jurisdiction' 'service Outside Australia' 'uniform Civil Procedure Rules' 'service of Originating Process']
['civil Procedure'] ['substituted Service' 'jurisdiction' 'service Outside Australia' 'uniform Civil Procedure Rules' 'service of Originating Process']

Case Brief

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Procedural Posture

Application to Set Aside/substituted Service / Interlocutory Determination on Substituted Service/setting Aside Service

Legal Issues

  1. 1 ['Whether substituted service of originating process can be effected on an Australian citizen residing permanently overseas; Whether substituted service order made by District Court should be set aside; Whether the Supreme Court has jurisdiction to order substituted service in the circumstances; Whether actions founded on breach of contract occurring within NSW bring the defendant within service-out provisions.']

Ratio Decidendi

The Supreme Court has jurisdiction to order substituted service on a defendant who, although outside the jurisdiction at the time of commencement of proceedings, is amenable to service out under Schedule 6 of the UCPR, and where steps have been taken to bring the originating process to the defendant's notice; the earlier District Court order for substituted service is set aside but substituted service is confirmed pursuant to the Supreme Court's powers.

Court Disposition

Orders for substituted service made by the District Court set aside; substituted service on Mr Eddie at 31 Haldon Street Lakemba on 17 August 2007 deemed service in Supreme Court proceedings.

Orders

  • ['Order of District Court for substituted service dated 13 August 2007 set aside.' 'Service of Statement of Claim at 31 Haldon Street Lakemba on 17 August 2007 deemed service on Mr Eddie in these proceedings.' "Plaintiff to be heard on the question of costs, with provisional order that Mr Eddie pay plaintiff's costs...