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Yu v Registrar-General of New South Wales

our new case in the Supreme Court of NSW

NEW SOUTH WALES SUPREME COURT

CITATION:
Yu v Registrar-General of New South Wales [2010] NSWSC 353

JURISDICTION:
Equity

FILE NUMBER(S):
2010/67122

HEARING DATE(S):
15 April 2010

JUDGMENT DATE:
15 April 2010

EX TEMPORE DATE:
15 April 2010

PARTIES:
Plaintiff: Hengfeng Yu
1st Defendant: Registrar-General of New South Wales
2nd Defendant: Wun Cheung Chan
3rd Defendant: Council of the Law Society of New South Wales

JUDGMENT OF:
White J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Plaintiff: J Gormley
1st Defendant: n/a
2nd Defendant: n/a
3rd Defendant: Ms L Tang

SOLICITORS:
Plaintiff: Wang & Associate Solicitors
3rd Defendant: Law Society of NSW

CATCHWORDS:
PRACTICE AND PROCEDURE – service of originating process – whether court has power to dispense with service without substituted service – order for substituted service under rule 10.14 of Uniform Civil Procedure Rules – requirements for substituted service

LEGISLATION CITED:
Legal Profession Act 2004 (NSW)
Evidence Act 1995 (NSW)

CATEGORY:
Procedural and other rulings

CASES CITED:
Laurie v Carroll (1958) 98 CLR 310
White v Weston [1968] 2 QB 647
Porter v Freudenberg [1915] 1 KB 857
Chappell v Coyle (1985) 2 NSWLR 73

TEXTS CITED:
Dicey, Conflict of Law, 6th ed (1949)

DECISION:
Refer to paras 28 and 29 of judgment.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 15 April 2010

2010/67122 Hengfeng Yu v Registrar-General of New South Wales & 2 Ors

JUDGMENT

1 HIS HONOUR: These proceedings were commenced on 16 March 2010. The plaintiff alleges, and has filed affidavits which unless contradicted would prove, that the second defendant, Mr Chan, defrauded the plaintiff and by forgery became registered as the proprietor of a property in Granville which is beneficially owned by the plaintiff.

2 The affidavits read by the plaintiff establish that the plaintiff retained Mr Chan as his solicitor to purchase the property, that the vendor of the property signed a contract with the plaintiff and executed a transfer of the property in favour of the plaintiff, that the plaintiff provided the purchase price, but Mr Chan registered himself as the owner of the property and forged a transfer for that to be done.

3 The plaintiff deposes that Mr Chan told him that he, Mr Chan, was required to hold the original contract for five years and that he did not know and was not told that the transfer was to be registered. He was unaware that the property for which he paid was registered in Mr Chan’s name. It appears that Mr Chan raised moneys on the security of the property by executing a mortgage in favour of Nationwide Capital Pty Limited. Mr Chan’s practising certificate has been suspended.

4 In October 2008 a manager was appointed to Mr Chan’s practice pursuant to s 623(2) of the Legal Profession Act 2004 (NSW). A claim has been made on the Fidelity Fund. The Fidelity Fund has paid the moneys necessary to discharge the mortgage.

5 The plaintiff’s current solicitor now holds the certificate of title to the property which is still registered in the name of Mr Chan. The plaintiff seeks orders for the cancellation of the certificate of title and the issue of a new certificate of title by the Registrar-General in his name.

6 The difficulty in the present application is that Mr Chan has not been served. The plaintiff did not know his whereabouts, or whether he was in Australia when proceedings were commenced. The manager appointed to Mr Chan’s practice, a Mr Collins, deposes that it appeared that Mr Chan had occupied part of the first floor of the office premises as his place of residence. It does not seem that he still resides there.

7 Mr Collins spoke to Mr Chan in May 2009 and arranged an appointment which Mr Chan was to attend. Mr Collins has had no further contact with Mr Chan since that conversation and has had no response to his correspondence. Mr Collins has advertised in the Law Society Journal seeking information as to Mr Chan’s whereabouts but has not received any reply from anyone to that advertisement.

8 The matter has been placed in the hands of the police. The plaintiff’s solicitor deposes that on 22 March 2010 he was told by a Detective Constable Williams that he was in the process of investigating Mr Chan’s whereabouts and would be knocking on some doors soon. Detective Constable Williams told the plaintiff’s solicitor that:

“We have an idea of who to ask but we can’t say where he is, he could be overseas by now.”

9 More recently, Detective Constable Williams has told another solicitor in the firm acting for the plaintiff that he has been told by the Department of Immigration that Mr Chan left the country on 13 August 2009 and his whereabouts are currently unknown. Detective Constable Williams said that he would try to find out from the Immigration Department which country Mr Chan is in at the moment, and once located he would talk to his supervisor about seeking an extradition order, but whether that would be practicable would depend on what country he was in.

10 I was told by the plaintiff’s solicitor that Detective Williams also conveyed that the Department of Immigration understood that Mr Chan had left Australia for Hong Kong.

11 No order has been made for substituted service. Today the plaintiff seeks the final substantive relief in the statement of claim and seeks an order that service on Mr Chan be dispensed with.

12 The first question is whether there is power to make such an order. The action between the plaintiff and Mr Chan is personal action. It is not an action in rem. In Laurie v Carroll (1958) 98 CLR 310 at 323-324, the High Court quoted with approval from Dicey, Conflict of Law, 6th ed (1949) at 172 that:

“The service of the writ or something equivalent thereto is absolutely essential as the foundation of the court’s jurisdiction. Where a writ cannot legally be served upon a defendant the Court can exercise no jurisdiction over him. In an action in personam the converse of this statement holds good and wherever a defendant can be legally served with the writ, there the court, on service of being effected, has jurisdiction to entertain an action against him. Hence in an action in personam the rules as to the legal service of a writ define the limits of the court’s jurisdiction. Now, a defendant who is in England can always, on the plaintiff’s taking proper steps, be legally served with a writ. The service should be personal, but if personal service cannot be effected the court may allow substituted or other service.”

13 No order for substituted service has been made. There is no direct evidence that Mr Chan was outside Australia when the proceedings were commenced. But pursuant to s 75 of the Evidence Act 1995 (NSW) I can act on the hearsay evidence to which I have referred.

14 The fact that Mr Chan was apparently outside Australia when proceedings were commenced does not deprive the Court of jurisdiction. Service could be effected outside Australia pursuant to r 11.2 and paragraph (j) of schedule 6 to the Uniform Civil Procedure Rules.

15 The question is whether I can make the orders sought when Mr Chan has not been served, and no order has been made for substituted service. It is submitted for the plaintiff that I could dispense with service pursuant to r 10.1 of the Uniform Civil Procedure Rules. That rule provides relevantly:
“10.1(1) Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party.”

16 No authority was cited in support of the submission that that rule authorised the Court’s dispensing with service of the originating process. Any rule for dispensing with service of originating process is to be strictly construed. In White v Weston [1968] 2 QB 647, Sachs LJ said (at 660) that:

“… only an explicit and clear provision in a statute, or in rules having statutory force, can operate to deprive a citizen of this right to receive notice of the commencement of the process against him …”

17 Rule 10.1 is a general rule relating to service of documents in proceedings. It contemplates that at the time documents that have been filed are to be served there will be other active parties. Prior to service of the originating process the defendants could not be said to be active parties.

18 Other rules such as r 10.15 dealing with service of originating process in proceedings for possession of land make express provision for modifying the rules in relation to service of originating process. In my view, r 10.1(1) does not dispense with what is otherwise an essential requirement for the Court to have jurisdiction.

19 It seems to me that I do not have jurisdiction to make the orders sought unless and until an order is made for substituted service pursuant to r 10.14 and that order is complied with.

20 That rule provides:

“10.14 Substituted and informal service generally

(1) If a document that is required or permitted to be served on a person in connection with any proceedings:

(a) cannot practicably be served on the person, or

(b) cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

(4) Service in accordance with this rule is taken to constitute personal service.”

21 It was submitted for the plaintiff that I should make an order nunc pro tunc directing that service of the documents which has been effected on the Law Society and on the police be taken to be sufficient service under r 10.14(1).

22 It does not appear to me that service which has been effected on the Law Society and on the police was effected for the purpose of bringing these proceedings and the documents filed in them to the notice of Mr Chan. The Law Society is itself a defendant, as relief is claimed in the statement of claim against it in relation to orders the plaintiff sought pursuant to s 445 of the Legal Profession Act for indemnity in relation to costs.

23 It does not appear that the Law Society was asked to pass on the documents to Mr Chan, as distinct from passing them on to the manager of Mr Chan’s practice, Mr Collins. Nor is it at all probable that the police would be expected to pass on the documents to Mr Chan for whom they are still looking. Detective Constable Williams had said “Obviously I don’t want to call Bob Chan.”

24 I do not consider that the service which has already been effected on those persons could be construed as being service made for the purpose of bringing the documents to Mr Chan’s notice.

25 There is no doubt that r 10.14(1)(a) and (b) are both satisfied. There is authority that for substituted service to be permitted it must be clearly shown that the documents to be served are likely to reach the defendant or to come to his knowledge if the method of substituted service which is asked for by the plaintiff is adopted (Porter v Freudenberg [1915] 1 KB 857 at 888; Chappell v Coyle (1985) 2 NSWLR 73 at 76 ff).

26 However it is not a requirement of the rule that steps taken pursuant to an order made under r 10.14 be likely to bring the document to the notice of the person concerned before an order can be made directing that the person be taken to have been served. Rather, steps must be taken for the purpose of bringing the document to the notice of the person concerned.

27 There is no address known to the plaintiff at which documents could be left which might be thought would then come to the notice of Mr Chan. It is possible that advertisements in a national paper in Australia and in a major newspaper in Hong Kong would achieve that purpose.

28 Accordingly, pursuant to r 10.14, I direct that instead of service of the statement of claim and affidavits filed in these proceedings on the second defendant the plaintiff, within 28 days, advertise in The Australian newspaper and in the South China Morning Post in Hong Kong the fact that proceedings have been instituted by the plaintiff in the Supreme Court of New South Wales against the second defendant in which orders are sought that the Registrar-General cancel the certificate of title in the name of second defendant in respect of the land referred to in paragraph 2 of the statement of claim, and the Registrar-General issue a new certificate of title showing the plaintiff as the registered proprietor of that property, and also stating that information and documents in relation to the proceedings can be obtained from the plaintiff’s legal representative, Mr Jay Wang of Wang & Associate Solicitors and providing the contact details of Mr Wang. The advertisement should also state that the proceedings will be returnable before the Court on 20 May 2010 and if there is no appearance by Mr Chan or a person on his behalf at that time orders may be made in his absence.

29 Assuming that the order for substituted service is complied with, then the documents will be taken to have been personally served on Mr Chan and on the next occasion the Court would have jurisdiction to make the orders sought. If short minutes are handed up on that occasion they should include an order for the plaintiff to deliver the duplicate certificate of title presently held by him or his solicitor to the Registrar-General for cancellation.

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LAST UPDATED:
28 April 2010