Perpetual Trustees Victoria Limited v Tatjana Erdogan [2010] NSWSC 1037

Perpetual Trustees Victoria Limited v Tatjana Erdogan [2010] NSWSC 1037

The application failed because the evidence before the Registrar clearly demonstrated that personal service on Mrs Erdogan was not practicable, so the substituted service order was correctly and appropriately made. The post office box did not need to be disclosed because it was not a means of personal service under the UCPR and earlier correspondence sent there drew no response. In any event, Mrs Erdogan had knowledge of the statement of claim from about 20 July 2010 and, by instructing lawyers to appear and seek orders in the proceedings for about six weeks, waived any complaint about the adequacy, regularity or appropriateness of substituted service.

Jurisdiction
Australia
Judgment Date
10 September 2010
Procedural Posture
Application to Set Aside the Service of Originating Process / Amended Notice of Motion by the Defendant After Default Judgment and Writ of Possession
Outcome
Application to set aside service of the originating process refused; amended notice of motion dismissed with costs.
Legal Topics
['substituted Service' 'setting Aside Service of Originating Process' 'discretion Under Uniform Civil Procedure Rules 2005, R 12.11' 'waiver by Participation in Proceedings']
['practice and Procedure'] ['substituted Service' 'setting Aside Service of Originating Process' 'discretion Under Uniform Civil Procedure Rules 2005, R 12.11' 'waiver by Participation in Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Set Aside the Service of Originating Process / Amended Notice of Motion by the Defendant After Default Judgment and Writ of Possession

Legal Issues

  1. 1 ['Whether the order for substituted service of the statement of claim was correctly and appropriately made.' 'Whether Perpetual was required to do more to attempt personal service before substituted service was ordered.' "Whether Perpetual's failure to inform the Registrar of a post office box warranted setting aside service." "Whether the defendant's participation in the proceedings waived any issue about service."]

Ratio Decidendi

The application failed because the evidence before the Registrar clearly demonstrated that personal service on Mrs Erdogan was not practicable, so the substituted service order was correctly and appropriately made. The post office box did not need to be disclosed because it was not a means of personal service under the UCPR and earlier correspondence sent there drew no response. In any event, Mrs Erdogan had knowledge of the statement of claim from about 20 July 2010 and, by instructing lawyers to appear and seek orders in the proceedings for about six weeks, waived any complaint about the adequacy, regularity or appropriateness of substituted service.

Court Disposition

Application to set aside service of the originating process refused; amended notice of motion dismissed with costs.

Orders

  • ['The amended notice of motion filed by the defendant on 23 August 2010 is dismissed.' 'The defendant is to pay the costs of the motion.' 'The stay of execution of the writ of possession is extended until 4pm on Tuesday, 14 September 2010.' 'List the matter for mention at 9.30am on Tuesday, 14 September 2010.']