PERPETUAL CORPORATE TRUST LIMITED -v- KOTTALEWALA [2025] WASC 250 (24 June 2025)

1. The affidavits read by counsel for Perpetual reveal the following facts.
2. Mr Kottalewala is the registered proprietor of the land situated at 8A Deverell Way, Bentley (Land).
3. On or about 9 December 2021, Perpetual and Mr Kottalewala entered into a written loan agreement (Loan Agreement). Pursuant to the Loan Agreement, Mr Kottalewala borrowed $592,000 (Loan Amount) from Perpetual and agreed to repay the Loan Amount in accordance with the terms and conditions of the Loan Agreement. Perpetual secured repayment of the money under the Loan Agreement by a mortgage over the Land (Mortgage). The Mortgage was entered into on 23 December 2021. The Loan Amount was advanced on or about 23 December 2021.
4. The Loan Agreement and Mortgage contained the usual conditions relating to enforcement.
5. As at 15 August 2024, Mr Kottalewala had failed to pay the sum of $129,009.78 to Perpetual when it was due and payable and by that failure was in default under the Loan Agreement.
6. By a Notice of Default dated 20 August 2024 (Notice), Perpetual gave notice to Mr Kottalewala that an event of default had occurred, that if the default was not rectified within the time specified in the Notice the whole of the amount owing pursuant to the Loan Agreement would become immediately due and payable and Perpetual would commence enforcement proceedings.
7. Mr Kottalewala failed to rectify the default within the time specified in the Notice.
8. As mentioned, the Writ was filed on 9 December 2024.
9. Perpetual is having trouble serving Mr Kottalewala.
10. As at the date the action was commenced, Mr Kottalewala's last known address was a residence on Russell Street, in East Cannington (Russell Street Address).
11. Mr Kottalewala's last known email was kottalewala@yahoo.com (Email Address). Annexure TES1 to the Strack Affidavit is an email chain between Ms Strack and Mr Kottalewala at the Email Address in October and November 2024. Ms Strack also deposes as to the most recent mobile telephone numbers she has for Mr Kottalewala.
12. Perpetual's lawyers sent a process server to try and serve Mr Kottalewala at the Russell Street Address. On 7 January 2025, the process server attended the Russell Street Address, but did not make contact with any of the occupants. Later that day, the process server received an email from the occupant of the Russell Street Address advising that Mr Kottalewala no longer lived there and providing the address of the Land as an alternate address (Deverell Way Address). On 16 January 2025, the process server attended the Deverell Way Address, but did not make contact with any occupants. The process server also attempted to contact Mr Kottalewala at the mobile numbers referred to by Ms Strack, without success. On 27 January 2025 the process server received an email from the Email Address in the following terms:[1]

Hi Steve I receive your Name card. I am no longer stay at the property. As the property is being leased. And i am currently in overseas, How can i help?

1. On 10 February 2025, Perpetual's lawyers sent an email to Mr Kottalewala at the Email Address enclosing a copy of the Writ. The letter went on to encourage Mr Kottalewala to consent to being served by email. No response was received to this email, or a follow up one sent on 19 March 2025.
2. As at 4 April 2024, when Ms Strack swore her affidavit, Mr Kottalewala had not contacted Perpetual's lawyers since his email.

What orders does Perpetual require for the Writ to be served?

1. Rules of the Supreme Court 1971 (WA) (RSC) O 5 r 9 provides that a 'writ for service outside Australia shall not be issued without the leave of the Court'. However, the Writ was not, on its face, one for service outside Australia. Rather, the address of Mr Kottalewala was the Russell Street Address. There was an appropriate factual basis for this course of action as this was his last known address to Perpetual.[2] As an alternative, the address of Mr Kottalewala on the certificate of title for the Land is the Deverell Way Address. So this is not a case in which a plaintiff is trying to avoid the service out provisions of the RSC by 'manufacturing' an address within the jurisdiction. The effect is that the Writ was validly issued. There is no irregularity which needs to be rectified.
2. Having been validly issued, Perpetual now needs to serve the Writ. Mr Kottalewala must be personally served with the Writ,[3] within the court's territorial jurisdiction.[4]
3. Neither the Loan nor the Mortgage contains 'a term to the effect that the Supreme Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Supreme Court has jurisdiction to hear'. So Perpetual cannot rely on RSC O 9 r 3.
4. Further, as the Land appears to be in the possession of a tenant, Perpetual cannot rely on the mode of service set out in RSC O 9 r 4.
5. The fact that Mr Kottalewala is now 'no longer amenable to the territorial jurisdiction exercised by ordinary writ for service within the jurisdiction... cannot be overcome by an order for substituted service'.[5] In other words, Perpetual cannot invoke the ordinary territorial jurisdiction of the Supreme Court by now obtaining an order for substituted service on a person whom it believes is overseas.
6. Perpetual can, however, seek to invoke the so called 'long-arm' jurisdiction of the Supreme Court set out in RSC O 10.[6] This is what it has done in the Application by seeking leave to issue a concurrent writ of summons for service on Mr Kottalewala in Indonesia.
7. By RSC O 7 r 3, 'a writ to be served out of the jurisdiction may be issued as a concurrent writ with one to be served within the jurisdiction'. In my view, the issue of the concurrent writ for service outside Australia requires leave pursuant to RSC O 5 r 9.
8. Where leave to serve the writ is required, the court will not grant leave to issue a writ for service outside Australia unless the court would also grant leave to serve the writ outside Australia.[7] Where leave is needed, there are two requirements. The first is that the plaintiff must satisfy one of the 'jurisdictional gateways' in RSC O 10.[8] The second is that the court must be persuaded to exercise its discretion in favour of the grant of leave.[9] As to this second requirement, the Court of Appeal in Mincon observed:[10]

...it must be 'sufficiently' apparent that the case is a 'proper one' for service out of the jurisdiction. For example, the court should be satisfied that the proceedings will not be stayed on inappropriate forum grounds or otherwise be liable to summary dismissal. The latter discretionary matter involves consideration of the plaintiff's prospects of success on the merits of its claim. In terms of both jurisdiction and discretion the court should not grant leave unless it is positively persuaded that it should do so....

1. RSC O 10 was amended significantly with effect from 9 April 2024 by removing, generally speaking, the need to obtain leave prior to serving proceedings outside Australia. This brought the RSC largely into line with the rules for service out of the jurisdiction in the Federal Court of Australia, and the Supreme Courts of New South Wales, Queensland, Victoria and South Australia.[11] Relevantly for present purposes, RSC O 10 r 5 sets out a large number of circumstances in which an originating process may be served outside Australia without leave.
2. There is some tension between RSC O 10 r 5 and RSC O 5 r 9. RSC O 5 r 9 was not amended at the same time as RSC O 10. There is no equivalent provision in the rules of the other mentioned jurisdictions.[12] So it does appear anomalous. Be that as it may, until such time as it is removed, RSC O 5 r 9 must be given effect to.[13] This creates a requirement for leave to be obtained to issue a writ which is to be served out of Australia, even though leave to serve it is not required.[14]
3. Applying RSC O 10 r 5 to the present case, Perpetual does not require leave to serve the Writ as:

(a) the Loan Agreement and Mortgage were entered into in Australia, this being the inference from the addresses of both La Trobe and Mr Kottalewala in that agreement;[15]

(b) the subject matter of the claim in the writ is the Land which is situated in Australia;[16] and

(c) the Mortgage is to be governed by the law of Western Australia, being the jurisdiction where the Land is located.[17]

Each of these grounds is sufficient in its own right.

1. In my view, where leave to serve outside the jurisdiction is not needed, the first of the requirements in [25] is readily satisfied. The second remains an issue of substance. Howard J came to the same view in Citic Pacific,[18] as did Lundberg J in Veolia.[19] In the former, Howard J observed: [20]

To allow the Court to consider it, an application for leave to issue a writ under O 5 r 9 generally would include:

1. the proposed writ in respect of which leave is sought;
2. an affidavit sufficiently and effectively verifying the claims in the writ;
3. an identification by the applicant of the provision/s of O 10 within which the plaintiff says its claim comes; and
4. any other matter which, as a party moving ex parte, the applicant is aware of and which may impact upon the exercise of the Court's discretion to grant leave. For example, if the putative plaintiff was aware of a matter which would or may lead to the Court subsequently staying the action, that ought be brought to the Court's attention on the application. By providing that example, I am not suggesting that is the only sort of matter which ought be brought to the Court's attention on an ex parte application

I agree, as did Lundberg J in Veolia.[21]

1. In this case, I am positively persuaded that the case is a proper one for service out of the jurisdiction. The affidavits filed sufficiently and effectively verify the claims in the writ. Perpetual's prospects of success on the merits of its claim are very strong. I have set out at [28] the provisions of RSC O 10 relevant to this claim. The connection to Western Australia is very strong. There is nothing in the materials to suggest that the proceedings are at any risk of being stayed on inappropriate forum grounds or otherwise be liable to summary dismissal.
2. Perpetual is entitled to be granted leave for a concurrent writ to issue to be served outside the jurisdiction pursuant to RSC O 7 r 3 and RSC O 5 r 9.
3. That leaves the mode of service.
4. Perpetual seeks service by email. An email is received at the place where it is first downloaded or viewed by the recipient[22] or, perhaps, the place where it is anticipated that the email will be received.[23] The difficulty here is that the evidence before the court is that Mr Kottalewala is overseas.[24]
5. Perpetual believes that Mr Kottalewala is residing in Indonesia as he provided a telephone number with the country code of Indonesia.
6. What Perpetual seeks is not an order for substituted service pursuant to O 72 r 4 where personal service is required, but is impracticable. Rather, it seeks an order that the primary mode of service be by email pursuant to RSC O 10 r 12.
7. By RSC O 10 r 12, a 'document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected'. The court must be satisfied that it is not making an order which would require an act in a foreign country contrary to its laws.[25]
8. Indonesia is not a party to the Hague Convention (Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters). The modes of service for non‑convention countries set out in O 10 div 4 are options, denoted by the use of the word 'may' in O 10 r 14 (and see also O 10 r 19).
9. The court requires evidence of the law of the country in which the process is sought to be served so that it has a factual basis to determine whether or not the mode of service proposed is in accordance with the law of the country in which service is effected.[26]
10. Mr Sidabutar gives evidence that he is not aware or able to find any Indonesian law which:

(a) requires a Writ of Summons issued out of the Supreme Court of Western Australia to be served within Indonesia via a specific method of service, provided that Australian laws and regulations do not require such Writ of Summons to be served via the Indonesian Court, or;

(b) would prevent a Writ of Summons issued out of the Supreme Court of Western Australia from being served by email on a defendant who resides in Indonesia, provided that service by email is allowed by Australian law.[27]

1. On this basis, I am satisfied that service of the writ by email on Mr Kottalewala is in accordance with the law of Indonesia. Accordingly, I will order that service may take place by this mode.
2. The following orders are appropriate:
   1. The plaintiff have leave to issue a concurrent writ of summons for service on the defendant in Indonesia.
   2. The plaintiff have leave to serve the concurrent writ of summons on the defendant by sending the following documents in portable document format by email to kottalewala@yahoo.com:
      1. a Form 4 Notice to defendant;
      2. the sealed concurrent writ of summons; and
      3. Form 5AB Notice to defendant.
   3. Service in accordance with order 2 herein shall be good and sufficient service of the concurrent writ of summons of the defendant.
   4. The defendant shall have 42 days after service in accordance with order 2 herein to enter an appearance in this action.
   5. Until such time as the defendant files a document stating his service details in accordance with Order 71A of the Rules of the Supreme Court, the plaintiff may serve any document in the action that is required to be served on the defendant by ordinary service by email to kottalewala@yahoo.com.
   6. The plaintiff's costs of this application be in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[4] Mincon Mining and Construction Products GMBH & Co KG v Macmahon Mining Services Pty Ltd [2022] WASCA 56 [51] (judgment of the court) (Mincon); Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd [2024] WASC 254 [29] (Howard J) (Citic Pacific); Johnson v Taylor Bros & Co Ltd [1920] AC 144, 154 (Lord Birkenhead L.C, Viscount Haldane, Lord Dunedin, Lord Atkinson, and Lord Buckmaster).

[5] Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310, 332 (Dixon CJ, Williams and Webb JJ); Kent v MacLellan [2002] WASC 199 [27] (Pullin J).

[7] Mincon [57]; Norwest Group Logistics Pty Ltd v Buyake Investments Ltd (Registration No 1202 2204 2635 (Zambia)) [2024] WASC 62 [12] (Howard J) (Norwest).

[10] Mincon [71] (references omitted); Norwest [12].

[11] See generally: Civil Procedure Western Australia (LexisNexis) [10.0.1] - [10.0.3]; Citic Pacific [18] - [20].

[14] Re Veolia Water Technologies (Australia) Pty Ltd; ex parte Veolia Water Technologies (Australia) Pty Ltd [2025] WASC 46 [8] (Lundberg J) (Veolia).

[15] Strack Affidavit, page 6; RSC O 10 r 5(b)(i).

[17] Mortgage Memorandum of Provisions, cl 11.2; RSC O 10 r 5(b)(iv).

[22] Deputy Commissioner of Taxation v Ranguta Limited [2022] FCA 1572 [33] (Jackson J).