Waverley Council v Bobolas [2013] NSWLEC 119

Waverley Council v Bobolas [2013] NSWLEC 119

In unusual circumstances where the council resiles from affidavits of service and the respondents establish they did not receive the summons, it is appropriate to declare the originating process has not been served, and to order the applicant to pay the respondents' filing fee.

Jurisdiction
Australia
Judgment Date
26 July 2013
Procedural Posture
Civil Enforcement Proceedings / Interlocutory Motion; Ex Tempore Judgment
Outcome
Order declaring non-service; order for applicant to pay respondents' filing fee; proceedings stood over.
Legal Topics
['service of Originating Process' 'substituted Service' 'extension of Time for Service' 'setting Aside Process' 'court Jurisdiction']
['practice and Procedure'] ['service of Originating Process' 'substituted Service' 'extension of Time for Service' 'setting Aside Process' 'court Jurisdiction']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings / Interlocutory Motion; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the originating process has been duly served on the second and third respondents' 'Whether an order should be made setting aside the originating process' 'Whether protection of property and jurisdiction-related orders should be granted' "Whether the applicant should pay the respondents' filing fee" 'Whether application for substituted service and extension of time should be granted']

Ratio Decidendi

In unusual circumstances where the council resiles from affidavits of service and the respondents establish they did not receive the summons, it is appropriate to declare the originating process has not been served, and to order the applicant to pay the respondents' filing fee.

Court Disposition

Order declaring non-service; order for applicant to pay respondents' filing fee; proceedings stood over.

Orders

  • ['Order declaring that the originating process has not been served on the second and third respondents.' "Order that the applicant pay the filing fee of the second and third respondents' notice of motion filed on 12 July 2013 when those respondents become liable to pay that filing fee." 'Proceedings stood over to...