Hornsby Shire Council v Trives [2014] NSWLEC 41

Hornsby Shire Council v Trives [2014] NSWLEC 41

Because the second and third defendants were overseas when the proceedings were commenced and there was no real suggestion that they had left Australia to evade service, the Court's territorial want of jurisdiction could not be overcome by an order for substituted service. Pt 11 of the Uniform Civil Procedure Rules 2005 applies only to the Supreme Court and not to the Land and Environment Court, and Pt 11A was not shown to apply on the evidence. The substituted service orders were therefore made without jurisdiction and had to be vacated.

Jurisdiction
Australia
Judgment Date
16 April 2014
Procedural Posture
Class 4 Proceedings / Interlocutory Application for Substituted Service
Outcome
Orders 1, 3 and 4 of the orders made on 15 April 2014 were vacated.
Legal Topics
['substituted Service' 'service Outside Australia' 'territorial Jurisdiction' 'uniform Civil Procedure Rules 2005 Pt 11' 'uniform Civil Procedure Rules 2005 Pt 11 A' 'complying Development Certificate']
['civil Procedure' 'land and Environment'] ['substituted Service' 'service Outside Australia' 'territorial Jurisdiction' 'uniform Civil Procedure Rules 2005 Pt 11' 'uniform Civil Procedure Rules 2005 Pt 11 A' 'complying Development Certificate']

Case Brief

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Procedural Posture

Class 4 Proceedings / Interlocutory Application for Substituted Service

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to make an order for substituted service on the second and third defendants who were overseas when the summons was filed and the application was made.' 'Whether Pt 11 of the Uniform Civil Procedure Rules 2005 applies to the Land and Environment Court.' 'Whether Pt 11A of the Uniform Civil Procedure Rules 2005 assisted the council in seeking service outside Australia.']

Ratio Decidendi

Because the second and third defendants were overseas when the proceedings were commenced and there was no real suggestion that they had left Australia to evade service, the Court's territorial want of jurisdiction could not be overcome by an order for substituted service. Pt 11 of the Uniform Civil Procedure Rules 2005 applies only to the Supreme Court and not to the Land and Environment Court, and Pt 11A was not shown to apply on the evidence. The substituted service orders were therefore made without jurisdiction and had to be vacated.

Court Disposition

Orders 1, 3 and 4 of the orders made on 15 April 2014 were vacated.

Orders

  • ['Orders 1, 3 and 4 of the orders made on 15 April 2014 be vacated.']