Elcham v Darling Island Sydney [2005] NSWSC 448

Elcham v Darling Island Sydney [2005] NSWSC 448

The plaintiff had taken steps that had a tendency to bring, and were highly likely to have brought, the summons and statement of claim to the notice of each of the second and third defendants, including attempts at their homes and office, leaving documents, and emailing electronic copies with confirmations that the emails were received and read. The Court concluded that both defendants had been evading service and that it was appropriate to exercise the power under Part 9 rule 11 to deem service effected.

Jurisdiction
Australia
Judgment Date
06 May 2005
Procedural Posture
Application Under Part 9 Rule 11 of the Supreme Court Rules 1970 Seeking Confirmation of Service of the Summons and Statement of Claim on the Second and Third Defendants / Ex Tempore Judgment in the Equity Division Expedition List
Outcome
Service confirmed
Legal Topics
['confirmation of Informal Service' 'service of Originating Process' 'deemed Service' 'evasion of Service']
['practice and Procedure' 'civil Procedure'] ['confirmation of Informal Service' 'service of Originating Process' 'deemed Service' 'evasion of Service']

Case Brief

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Procedural Posture

Application Under Part 9 Rule 11 of the Supreme Court Rules 1970 Seeking Confirmation of Service of the Summons and Statement of Claim on the Second and Third Defendants / Ex Tempore Judgment in the Equity Division Expedition List

Legal Issues

  1. 1 ['Whether it was impracticable to serve the summons and statement of claim on the second and third defendants in the required manner.' 'Whether steps had been taken for the purpose of bringing, or having a tendency to bring, the summons and statement of claim to the notice of the second and third defendants.' 'Whether the Court should exercise its power to deem service to have been effected.']

Ratio Decidendi

The plaintiff had taken steps that had a tendency to bring, and were highly likely to have brought, the summons and statement of claim to the notice of each of the second and third defendants, including attempts at their homes and office, leaving documents, and emailing electronic copies with confirmations that the emails were received and read. The Court concluded that both defendants had been evading service and that it was appropriate to exercise the power under Part 9 rule 11 to deem service effected.

Court Disposition

Service confirmed

Orders

  • ['Each of the summons and statement of claim in these proceedings be taken to have been served on the second and third defendants on 2 May 2005.' 'Costs of the application reserved.']