GRC Project Pty Ltd t/as GRC Property Management & Anor v Lai

District Court of NSW|2022-10-27

Background

On 12 October 2022, the first plaintiff, a corporation which claims to employ fewer than 10 persons, and the second plaintiff, commenced a proceeding in this Court's Defamation List. The second plaintiff is identified as the sole director and principal employee of the first plaintiff. The nature of the business is the provision of strata management services.
The plaintiffs claim damages for defamation relating to 8 'matters complained of' which were allegedly made by the defendant in the period between 8 December 2021 and 16 May 2022. Alternatively the plaintiffs seek orders for damages or compensation under ss 236 and/or 237 of the Australian Consumer Law (ACL) for conduct by the defendant alleged to contravene the prohibition in s 18 of the ACL.
On 24 October 2022, relying upon r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the plaintiff filed an Amended Statement of Claim. The amendments to the original iteration of the pleading appeared to be limited only to the assertion of factual matter relevant to the claim of aggravated damages (in the defamation suit) and the inclusion and annexing of the 'concerns notice'.
The plaintiffs' (amended) pleading describes the defendant, relevantly, as a resident of New South Wales (NSW); who also carries on business in NSW; was a client of the first plaintiff for a period of about 12 months; who owned real estate assets and was introduced to the second plaintiff for the provision (by the first plaintiff) of strata management services.
So far, the plaintiffs have not been able to serve the defendant with originating process.
The matter is returnable before the Court for directions in the Defamation List on 10 November 2022.
The plaintiffs, who I may henceforth also refer to as the applicants, now seek orders to dispense with personal service and orders for substituted or informal service. They did so, informally, by email correspondence emailed to my Associate under the influence of paragraph 14 of the Court's Defamation List Practice Note, which indicates that it is unnecessary for notices of motion to be filed for interlocutory applications.

Evidence in support of the application

The applicants rely upon the affidavits of Ricky Ng (the spouse of the second plaintiff) affirmed 23 October 2022 and Teresa Bruno (the applicants' solicitor) sworn 26 October 2022.

Attempts to personally serve the defendant at a residential address in Strathfield

Ms Bruno deposed to engaging a process server (Polo CPI) to personally serve the original Statement of Claim on the defendant's residential address, in Chalmers Road, Strathfield (the 'Strathfield residence'), which she understood to be the correct address partly on the basis of instructions from the second plaintiff, but more substantially, a Land Titles Office search indicating that the defendant was a joint tenant at that address.
Separately, Mr Ng deposed to having known the defendant since at least April 2021 (in a business and social context) and his awareness of the defendant's living in the Strathfield residence. He deposed to having been there at least three times at the defendant's invitation and her telling the second plaintiff in his presence that she lived there.

Evidence indicating a mobile phone number of the defendant

Ms Bruno also supplied the process server with a mobile number for the defendant. That number was again sourced from the second plaintiff.
Ricky Ng also deposed to his awareness of the same mobile number being that of the defendant's number. He had seen the second plaintiff call that number and had heard conversations between the second plaintiff and the defendant. He himself had called the number and had spoken to the defendant.
Ms Bruno emphasised, with reference to her reliance upon the instructions she had received from the second plaintiff, her understanding that the second plaintiff had had a business relationship with the defendant over a 12 month period coinciding with some of the 'matters complained of' in this proceeding.
Ms Bruno further deposed that on the day after the proceeding commenced, being 13 October 2022, she received an email from the process server indicating that he had been unable to effect personal service at the Strathfield address at about 3:20pm on the date the proceeding commenced, being 12 October. This email was attached to her affidavit. The reasons identified were: the gates at the front of the property were locked; there was no response to the security intercom. Nevertheless, according to the email, there were indications of occupation at the address: a person could be seen looking through the curtains; and a Mercedes Benz motor vehicle was parked in the driveway.
The email also indicated that the process server had rung the mobile phone number that the process server had been supplied which had been thought to belong to the defendant. The process server appeared to obtain mobile phone contact with the defendant: the defendant apparently explained that she would be in Brisbane for another week; but was unwilling to provide the address in Brisbane. I interpolate here that the process server did not say in this particular email that the person who he saw looking through the curtains on the first floor was seen holding the mobile phone during the process server's mobile phone conversation with the defendant.
Ms Bruno deposed to further attempts by the same process server to effect service at the same Strathfield residence at 7am on 14 October 2022 and at 1:20pm on 16 October 2022. Those subsequent attempts at personal service had also failed, for substantially the same reasons as the earlier attempt on 12 October had failed. There still remained a sign of occupation: the process server indicated that on 16 October, the balcony door on the first floor was open. This time, however, the process server could not reach the defendant by mobile phone.
Ricky Ng separately deposed to seeing the defendant at a public auction in a different residence in Strathfield. This was on 15 October. He also deposed to seeing her drive her Mercedes Benz vehicle whose registration plates fitted the description of the car that the process server had seen at the Strathfield address on 12 October. He also deposed to seeing the defendant leave the auction in a different motor vehicle being driven by her spouse.
Ms Bruno plainly had some queries of the process server and had a conversation with him on 17 October 2022. After that conversation, the process server sent another email on the same day, in which he clarified that he could not see whether it was a man or a woman who had been looking through the curtains when he attempted to effect personal service on 12 October 2022. He did, however, add that when he spoke to the defendant on 12 October, he had explained that he had legal documents to give to her in the nature of a statement of claim.
After three failed attempts, Ms Bruno deposed that Polo had closed its file and did not propose to make further attempts at personal service by means of delivering the court process to the Strathfield address. She herself doubted that service could practicably be effected by this means. In this respect, she emphasised that the defendant was made aware, through the telephone call she had received on her mobile phone from the process server on 12 October 2022, that the first plaintiff was trying to serve a statement of claim.

The applicants' proposed alternative for informal service

Ms Bruno deposed that in the period when she had represented the plaintiffs in their professional dealings with the defendant over the previous 10 months, most recently in the last month (September), she had personally utilised an email address 'burwood2010@hotmail.com' when contacting the defendant.
Mr Ng deposed to using this same email address successfully with the defendant.

Provisions for substituted or informal service

The requirements for proof for informal or substituted service in r 10.14 of the UCPR are well-known. They are conveniently summarised in Ritchie's Uniform Civil Procedure (NSW) at [10.14.15] as:

an explanation for why the ordinary mode of service cannot practicably be effected in the requisite manner;
details of unsuccessful attempts made to effect service, or to obtain information to enable service to be effected;
an indication as to the known circumstances and whereabouts of the person to be served;
details of the extent and manner of past communications with the person;
an indication of the degree of likelihood that the proposed manner of substituted service will bring the document to the person's attention.

Consideration

I find on the evidence that it is likely that, as at the dates earlier this month when the process server tried to effect personal service at the Strathfield address, the defendant: 1. was in Sydney; 2. was living in the Strathfield residence, in which she had an interest as a joint tenant; 3. was informed that the first plaintiff was trying to serve the Statement of Claim upon her; 4. falsely told the process server that she was in Brisbane; and 5. relied upon locked gates and refrained from answering the intercom when the process server arrived in attempting to evade service at the Strathfield residence.
Whatever nuances that surround the meaning of the expression 'cannot practicably' be served, I am satisfied that the defendant cannot be practicably served with process at the Strathfield address.
The next question is whether, as proposed, service of the process on the defendant's email address would, in all probability if not certainty, bring the court process to her attention.
I am satisfied that it would. The solicitor, Ms Bruno, has used this email address in recent times. So has the second plaintiff and her spouse, Mr Ng. Substituted service by email has been acknowledged as a legitimate alternative method of service (Wardle v Crinitis Castle Hill Trading Pty Ltd [2020] NSWSC 894)
I make the following orders: 1. The requirement for personal service be dispensed with. 2. Pursuant to r 10.14(1) of the UCPR, I direct that instead of personal service, the Amended Statement of Claim together with a sealed copy of these orders are to be brought to the defendant's notice by emailing them to burwood2010@hotmail.com by 5pm, 27 October 2022. 3. Pursuant to r 10.14(2) of the UCPR, the Amended Statement of Claim is taken to be served on the defendant upon the sending of the email referred to in order 2. 4. Costs of the application be reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2022

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