Elcham v Darling Island Sydney

Supreme Court of NSW|2005-05-06|Before: Campbell J

CITATION : Elcham v Darling Island Sydney [2005] NSWSC 448

CATCHWORDS : PRACTICE - confirmation of informal service

Simon Elcham - Plaintiff Darling Island Sydney Pty Ltd - First Defendant Warwick Mirzikinian - Second Defendant PARTIES : Robert Melhem - Third Defendant Cavastowe Pty Ltd - Fourth Defendant R W Darling Island Pty Ltd - Fifth Defendant

C George - Plaintiff S Raftery - First Defendant COUNSEL : No appearance - Second & Third Defendants M H Southwick - Fourth Defendant C Hagan, Solicitor - Fifth Defendant

Pateman Legal - Plaintiff No Appearance - First Defendant SOLICITORS : No appearance - Second & Third Defendants Mavrakis & Associates - Fourth Defendant Hagan & Co - Fifth Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

2613/05 SIMON ELCHAM v DARLING ISLAND SYDNEY PTY LTD & 4 ORS JUDGMENT - Ex Tempore 1 HIS HONOUR: This is an application which is made under Part 9 rule 11 of the Supreme Court Rules 1970, seeking confirmation of service of the summons and statement of claim in these proceedings on the second and third defendants. 2 Part 9, rule 11 provides: "Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person, 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." 3 The second and third defendants are each natural persons. 4 The evidence on the application is extensive. The evidence is best approached in chronological order. 5 The plaintiff in the present proceedings, Simon Elcham, had instructed his present solicitor, Mr Pateman, to act for him in some proceedings other than the present ones. In those other proceedings, Mr Pateman caused to be issued some subpoenas addressed to the second and third defendants. 6 Mr Sibraa, a process server used by Mr Pateman, attempted to serve one of those subpoenas on the second defendant on 26 February 2005. He had been given the address of 1B, Beaconsfield Road, Mosman. On going there, he asked to speak to the second defendant, but was told by the occupant that the second defendant lived next door at 1C Beaconsfield Road. 7 He attended the property at 1C Beaconsfield Road, Mosman, and spoke to a man on an intercom, as access to the front door was prohibited by a gate at the front of the property. The man on the intercom identified himself as being the second defendant. When the process server said that he had a subpoena for that person and asked him to come to the front gate to collect the subpoena, he received the reply, "No, you imbecile". The process server left the subpoena and a cheque for conduct money. 8 On 4 March, Mr Pateman received a document generated by computer, which had no address, no date, and no signature. It consisted of a blank piece of paper on which was typed the words: "This document was found in our garden at 1C Beaconsfield Rd, Mosman. Without reading the contents, the document looks quite important, so I have sent it back to the address on the bottom of the document."

The subpoena and cheque were enclosed. 9 On 4 March 2005, Mr Pateman sent an email to an email address, "warwick@m8telecom.com.au"; it addressed the second defendant by name, and claimed that he had been served with the subpoena, and threatened proceedings to enforce compliance with the subpoena. A copy of the subpoena, in electronic form, was enclosed with that email. 10 The software associated with the email delivery generated a notification that the email had been successfully delivered to the intended recipient. 11 On 21 March 2005, a process server tried again to serve the second defendant with a subpoena. He spoke to a neighbour about what type of vehicle the second defendant drove. He then spoke to a man who emerged from 1C Beaconsfield Road. He said to the man "Warwick Mirzikinian". The man replied, "What's it to you", to which the process server said, "I have a subpoena I am now serving on you and which you must now comply with its instructions", and handed him a subpoena and cheque. The man who had been served then tore up the subpoena and the attached cheque and said to the process server, "I'll see you in court". The neighbour, who had been standing nearby, then told the process server that the man he had been speaking with was the second defendant. 12 On 21 March, Mr Elcham, who knows the second defendant personally, received a telephone call from the second defendant. The second defendant said: "Simon, it's Warwick. I have just got another subpoena from Scott Pateman, or Steve Pateman, or whatever. I am just going to send it back to him like last time. What, you are not going to take the $200K offer I have made to you?"

Mr Elcham said, "No, I can't and I won't" . Mr Mirzikinian replied, "Up till now I have been nice to you. From now on, no rules!" 13 On 22 March 2005, Mr Pateman received an email from the email address, "warwick@m8telecom.com.au", which stated that it was from the second defendant. It stated that the second defendant had not been personally served, that "These proceedings are becoming tiring for all concerned. If you want to keep making this threat rather than following procedure, I am happy to wait for the Sheriff to serve and I will explain to the Court the reluctance to serve documents properly." 14 It then proceeded to give the second defendant's opinion about the lack of basis and lack of moral justification for the proceedings which were being brought; it also gave Mr Pateman some advice about how he should conduct his practice. 15 There were several other email exchanges between Mr Pateman and the second defendant at the same email address. The only relevance of them is the fact that they occurred, rather than their content. 16 The present proceedings were begun on 26 April 2005 when a summons was filed in court before the Chief Judge, who gave leave for short service. The Summons was made returnable before Justice Gzell on 27 April 2005. The second and third defendants did not appear in court on that day. 17 A process server attempted to serve the second defendant at 1C Beaconsfield Road, Mosman on 27 April 2005 but, on three occasions, it appeared that there was no-one there. 18 The third defendant resides at 69 Carabella Street, Kirribilli. On 27 April, the process server attempted to serve the third defendant at that address at 7pm, when there was no one present. The garage was open and empty. He returned to the premises at 9.15pm, found the garage door now closed, heard people in the property, but could not attract their attention, despite attempts to do so. 19 On 28 April, another process server, Mr Peng, attempted to serve both the second and third defendants at the office of M8 Telecom. M8 Telecom Pty Ltd is a company, an ASIC search of which shows it has its principal place of business at 5 Elizabeth Street, Sydney. The third defendant is shown by the ASIC search as being both a director and secretary of that company. 20 The process server attended at the office of M8 Telecom at 5 Elizabeth Street at 11.45am on 28 April, and he asked for both the second and the third defendant. The receptionist said that each of them were in, and that she would get them for him. She left. Two males then returned with her, and when asked by the process server whether they were the second and third defendant, they said they were not. The process server said he had a delivery for the second and third defendant and was told, "He is not here. What is in the envelope?" The process server said he did not know and could only give it to the recipient and left. 21 He returned just before 1pm on the same day, spoke to the same female employee and enquired whether the second and third defendants were in. She said, this time, "I don't know who you are talking about. Please leave the premises". The process server said, "When I spoke to you before, you said they were here in the office and I have been told to wait here until they come out". He waited until a little after 1 o'clock, when a man who identified himself as "Abdul" came out, and told the process server that neither the second nor third defendant worked at the office, and that Abdul did not know who either of them was. Mr Peng then gave up, and left. 22 On 29 April 2005, a copy of the summons and statement of claim was left on the front patio of the third defendant's home at a time when no-one was, apparently, there. Also on 29 April, the process server attended at the second defendant's home. He spoke to someone who he described as, "a young female under the age of 16 years", on the intercom. He asked whether the second defendant was there, and received the reply, "He is not home". He was also told that there were no other adults at home. He then left a copy of the summons and statement of claim at the premises. 23 On 29 April, an employee of Mr Pateman made an enquiry at M8 Telecom, and was told by someone, apparently, the receptionist, that the email address of the third defendant was, "robert@m8telecom.com.au". 24 I mention that the first name of the second defendant is "Warwick" and the first name of the third defendant is "Robert". 25 On 2 May 2005, Mr Savidis, an employee of Mr Pateman left envelopes addressed to the second and third defendant, respectively, and containing the summons and affidavit, at the office of M8 Telecom. He spoke to a male over the age of 16, who identified himself as "Alex", and a conversation occurred to the following effect: SAVIDIS: "Do you work here?" ALEX: "Yes, how can I help?" SAVIDIS: "Is Warwick Mirzikinian or Robert Melhem in?" ALEX: "No." SAVIDIS: "I have some important documents to deliver to them. Can you ensure that these packets of the documents are brought to their attention?" ALEX: "Yes." 26 Mr Savidis then handed over the envelopes to the man called Alex. 27 On 2 May 2005, Mr Pateman sent, addressed to the second and third defendant, respectively, at the email addresses, "warwick@m8telecom.com.au" and "robert@m8telecom.com.au", an email which attached electronic copies of the summons and statement of claim. The computer software delivered to Mr Pateman confirmation that each email had been both received and read. 28 Finally, on 4 May 2005, there was a further attempt to serve the second and third defendants. As far as the third defendant is concerned, the documents were, again, left on the front patio of the house at a time when there appeared to be some sort of electronic noise, like radio or television inside. Given the propensity of people to create an appearance of being at home when they are not, by leaving on lights, or noise-making electronic appliances, I do not place any reliance on him having heard that noise. 29 On 4 May, at the second defendant's home, a process server spoke first with a female child at 6.30pm. She said the second defendant was not there, and she did not know at what time the second defendant, or any other adults, would be home. 30 At 9.15pm, he returned to the address, and spoke with a male person on the intercom. That male identified himself as "Simon". He came to the front gate, said that he was neither a friend, nor relation of the second defendant, refused to give his surname, and, when asked at what time the second defendant would be home said, "I don't know this name. There is no person named 'Warwick' living here." 31 The conversation then continued: STOTT: "Do you own this property?" SIMON: "No, I am just keeping an eye on it." STOTT: "Who owns this property?" SIMON: "I don't know. I am just here doing a job, just like you are doing a job. Do you understand?" STOTT: "I have been asked to leave these documents at the property." SIMON: "Don't leave them here. I will throw them out on the street. The person they are for doesn't live here so there is no point." 32 Simon is someone who Mr Stott described as, "of middle eastern appearance, approximately 1.8 metres tall and strong and fit looking, like a security guard/bodyguard". 33 The power which is given to the Court under Part 9 rule 11 is one which enables the Court to deem service to have been effected of particular documents. The condition stated in the rule for the exercise of the power is that: "… steps have been taken for the purposes of bringing, or having a tendency to bring, the document to the notice of that person …"

That is a fairly undemanding requirement. 34 In the present case, that requirement has clearly been fulfilled, in relation to each of the second and third defendants, so there is power to make the order sought. However, there is a further question about whether the power should actually be exercised. 35 In the present case, the steps which have been taken are ones which are highly likely to have brought the documents to the attention of each of the second and third defendants. The bizarre course of conduct which has been described in these reasons for judgment leads me to the conclusion that each of the second and third defendants has been evading service. It is an appropriate occasion to exercise the power contained in the rules. 36 I direct that 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. 37 I reserve the costs of this application. **********

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Cited By (5)