Nanshan (Aust) Golf Resort Pty Ltd v Earth Fill Group Pty Ltd [2025] FCA 1377

1. This proceeding was commenced by originating application and statement of claim, which named as respondents: (1) Mr Roy Mardian; and (2) Earth Fill Group Pty Ltd, a company of which Mr Mardian is alleged to be the sole director and member (a fact which is confirmed by the ASIC extract for Earth Fill Group tendered this morning).
2. By interlocutory application dated 30 October 2025, the applicant seeks orders that service of the originating application and the statement of claim on Mr Mardian be deemed to have been effected on 16 October 2025; and for dispensation from the requirement to effect personal service. The applicant relies upon affidavits of: (1) Mr Robert Vassallo, a licensed process server; and (2) Mr Daniel Paske, a solicitor in the employ of the solicitors for the applicant.
3. Personal service of the originating application and the statement of claim is required: r 8.06 of the Federal Court Rules 2011 (Cth). This is to be effected by leaving those documents with Mr Mardian: r 10.01 of the Rules.
4. Rule 10.23 of the Rules provides:

10.23 Deemed service

A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date mentioned in the order if:

(a) it is not practicable to serve a document on the person in a way required by these Rules; and

(b) the party provides evidence that the document has been brought to the attention of the person to be served.

Note: Without notice is defined in the Dictionary.

1. The evidence on this interlocutory application establishes that:

(1) on 29 September 2025, Mr Vassallo:

(a) attended an address in Lanhams Road Winston Hills, which was recorded as the address on the electoral roll for Mr Mardian. At that address, Mr Vassallo spoke with Mr Mardian's former wife who indicated that Mr Mardian was not living at that address and may have been living at his parents' residence;

(b) called the mobile telephone number 0477xxx200 and spoke with Mr Mardian, who indicated that he was not interested in being personally served and requested that the documents to be served be sent to him by email at earthfillgroup22@gmail.com. Mr Vassallo tried to explain to Mr Mardian that service by email was not an available option and that personal service was required, but Mr Mardian refused to arrange a suitable time and place for service to occur;

(c) attended at the residence of Mr Mardian's parents and spoke to Mr Mardian's father. Mr Mardian's father indicated that he was unable to indicate Mr Mardian's current residence but could pass on documents to him. Mr Vassallo's evidence does not indicate whether Mr Vassallo left the originating application and statement of claim with Mr Mardian's father;

(2) on 16 October 2025, Mr Paske sent:

(a) an email to the email address earthfillgroup22@gmail.com:

We act on behalf of [the applicant] in relation to the above proceedings.

We refer to your recent conversation with Mr Robert Vassallo, in which you requested that the Originating Application and Statement of Claim be served via email at earthfillgroup22@gmail.com.

In accordance with your request, please find attached, by way of service, the sealed:

1. Originating Application dated 25 September 2025; and

2. Statement of Claim dated 25 September 2025.

... ; and

(b) a text message to the mobile telephone number referred to above, addressed to Mr Mardian:

As requested, the sealed Originating Application and Statement of Claim have been sent to your email address earthfillgroup22@gmail.com ... .

1. I am satisfied, on the basis of the evidence set out above, that each of the requirements of r 10.23 of the Rules is met.
2. The impracticability requirement in r 10.23(a), construed by reference to s 37M of the Federal Court of Australia Act 1976 (Cth), does not require proof of impossibility of personal service, rather proof that it is not practically feasible to achieve personal service by the application of reasonable effort: see, e.g., Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528 at [50] (Jackson J); Fisher v Isuzu Motors Ltd [2024] FCA 1109 at [11] (Wigney J); Vitaco Health IP Pty Ltd v AFI Cosmetic Pty Ltd (No 2) [2024] FCA 99 at [29] (Rofe J); and Hall v Hemant Investments Pty Ltd [2025] FCA 776 at [6] to [7] (Longbottom J). In the present case, it is not practicable to serve the originating application and the statement of claim upon Mr Mardian in circumstances where: (1) reasonable efforts have been made to attend upon him in person; (2) he is aware that such service is sought to be achieved; and (3) he has indicated that he is unwilling to accept personal service.
3. Further, the originating application and the statement of claim were brought to the attention of Mr Mardian when they were sent by email to the email address provided by him (and notification of the sending of that email was provided to Mr Mardian by text message to his mobile telephone number). Confirmation that Mr Mardian has read the email is not required: see, e.g., British American Tobacco Australasia Limited v Taleb (No 1) [2012] FCA 1065 at [46] (Dodds‑Streeton J); Bayles v Nationwide News Pty Limited [2020] FCA 1213 at [37] (Katzmann J); Haire v WorkCo Australia Pty Ltd [2024] FCA 668 at [39] (Horan J); Hall at [8] and [9].
4. In these circumstances, the orders sought by the applicant should be made. I will also make an order that the orders made today, together with these reasons, be sent to Mr Mardian at the email address that he provided to Mr Vassallo. I will also order that this email address stand as Mr Mardian's address for service in this proceeding until he files and serves a notice of address for service. Given the ex parte nature of this application, I will reserve the question of costs and grant the parties liberty to apply.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.