Applecross Pte Ltd (ARBN 079 372 722) v Lim

REASONS FOR JUDGMENT 1 In Applecross Pte Ltd (ARBN 079 372 722) v Lim [2009] FCA 1102 (Applecross No 1), I made orders granting the plaintiff leave to personally serve the originating process in this proceeding by a private agent on the fifth defendant (Peck Boon Gan) (amongst others) at either of two possible addresses. 2 The plaintiff now applies for substituted service on Peck Boon Gan at the first of those two addresses (the service address). 3 The details of the nature of the proceeding are set out at some length in Applecross No 1. Also set out is the reasoning for granting leave to serve the Original Process out of the jurisdiction. Those orders were made pursuant to O 8 r 3 of the Federal Court Rules (FCR). 4 The only question arising at present is whether substituted service by posting a copy of the documents to Peck Boon Gan at the service address should be permitted. 5 The application for substituted service is supported by affidavits of two process servers situated in Singapore. Those process servers depose to having personally attended at the address on several occasions. They held discussions with persons who were apparently family members and who indicated that Peck Boon Gan was overseas and would return. On one occasion a process server attended and held a discussion with a young woman who explained that Peck Boon Gan was her father and called out for him to come to the door. Instead of him coming to the door another woman came to the door indicating that she was Peck Boon Gan's wife and that he was not at home. A similar explanation about him being overseas was then given. 6 On a number of occasions the process servers left contact details with a request that Peck Boon Gan contact the process server or the office of the process server. No contact was received. 7 Order 7 r 9 FCR deals with substituted service in the following terms: 9 Substituted service (1) Where for any reason it is impractical to serve a document in the manner set out in the Rules, the Court may by motion in an existing proceeding made ex parte order 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 to be served. (2) Where the Court makes an order under subrule (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time. 8 I am satisfied that the evidence discloses persistent attempts to effect personal service. These attempts have occurred over staggered intervals. I am also satisfied that there is sufficient evidence that Peck Boon Gan resides at the service address. Personal service in the conventional manner has been shown to be impractical. I am satisfied that the proposed postage is a method which will in all reasonable probability be effected to bring knowledge of the documents to Peck Boon Gan. There is no distinction between substituted service out of the jurisdiction and service within the jurisdiction once the requirements for service out of the jurisdiction have been satisfied and service in accordance with orders made has been attempted. Once leave is obtained to serve a party out of the jurisdiction, the Court's discretion is subsequently enlivened to order substituted service if all the circumstances to do so otherwise exist (Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743). 9 In the circumstances I propose making orders in accordance with the ex parte motion which is amended at para 1.2 to replace 'the Statement of Claim' with the 'Amended Statement of Claim'. 10 The orders to be made will be as follows: 1. Service of a copy of: 1.1 the Originating Process; 1.2 the Amended Statement of Claim; 1.3 this Order; 1.4 the affidavit of Michael Cheng Lock Tan sworn 27 August 2009; and 1.5 the order of McKerracher J dated 22 September 2009/ (together, the "Documents"), by posting a copy of the Documents to "Peck Boon Gan" at Block 459, Pasir Ris Drive, 4 #04-257, Singapore 510459, shall be good and sufficient service of the Documents on the fifth respondent. 2. The costs of this application be in the cause. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.