Sutherland v Rogic [2011] NSWSC 712

Sutherland v Rogic [2011] NSWSC 712

Because the originating process was sent to the first defendant at the address she gave in her proof of debt and to email addresses connected with her, and because service in England did not require personal service, the Court was satisfied that service had been effected and notice had come to her attention, so leave to proceed under rule 11.4(1) was granted. As the trustee in bankruptcy accepted the binding financial agreement limiting the bankrupt estate's claim to $30,000, had invited but not received acceptance from Mrs Rogic to buy out that interest, and could not obtain the original certificate of title, sale of the property and issue of a new certificate of title were appropriate.

Jurisdiction
Australia
Judgment Date
06 July 2011
Procedural Posture
Summons for Appointment of Trustees for Sale of Property / Ex Tempore Judgment on Plaintiff's Application for Leave to Proceed and Substantive Relief
Outcome
Leave granted to proceed; order made for sale of the property; direction made for issue of a new certificate of title.
Legal Topics
['service of Originating Process Outside Australia' 'leave to Proceed Where Overseas Defendant Has Not Entered an Appearance' 'personal Service Outside Australia' 'appointment of Trustees for Sale' 'sale of Co Owned Property' 'certificate of Title']
['practice and Procedure' 'real Property' 'bankruptcy'] ['service of Originating Process Outside Australia' 'leave to Proceed Where Overseas Defendant Has Not Entered an Appearance' 'personal Service Outside Australia' 'appointment of Trustees for Sale' 'sale of Co Owned Property' 'certificate of Title']

Case Brief

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Procedural Posture

Summons for Appointment of Trustees for Sale of Property / Ex Tempore Judgment on Plaintiff's Application for Leave to Proceed and Substantive Relief

Legal Issues

  1. 1 ['Whether leave should be granted under rule 11.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff to proceed against the first defendant after service outside Australia where she had not entered an appearance.' 'Whether service on the first defendant in England was sufficient despite not being personal service.' 'Whether trustees for sale should be appointed and the Parramatta unit sold so the bankrupt estate could receive its agreed interest.' 'Whether a new certificate of title should be issued where the original certificate of title could not be obtained.']

Ratio Decidendi

Because the originating process was sent to the first defendant at the address she gave in her proof of debt and to email addresses connected with her, and because service in England did not require personal service, the Court was satisfied that service had been effected and notice had come to her attention, so leave to proceed under rule 11.4(1) was granted. As the trustee in bankruptcy accepted the binding financial agreement limiting the bankrupt estate's claim to $30,000, had invited but not received acceptance from Mrs Rogic to buy out that interest, and could not obtain the original certificate of title, sale of the property and issue of a new certificate of title were appropriate.

Court Disposition

Leave granted to proceed; order made for sale of the property; direction made for issue of a new certificate of title.

Orders

  • ['Leave granted to the plaintiff to proceed with the summons pursuant to rule 11.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Order for the sale of the property.' 'Direct the second defendant to issue a new certificate of title to the plaintiff.']