Pullicin v Pullicin

Decision date: 22 September 2025

Jurisdiction: Equity - Duty List

Before: Peden J

Decision: At [24]

Catchwords: CIVIL PROCEDURE – service – informal service –where plaintiff attempted service of originating process on three siblings – where summons emailed, texted, and left at residential addresses – where solicitor previously held instructions to accept service on behalf of first defendant – whether sufficient steps taken to bring summons to notice of defendants
CIVIL PROCEDURE – service – substituted service – where personal service on defendants unsuccessful – where summons affixed to residential premises and sent via electronic means – whether personal service impracticable – whether substituted service appropriate

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57
Contracts Review Act 1980 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 1.12, 10.6, 10.14

Cases Cited: Capral Ltd v DNV AS [2024] NSWSC 96
Commissioner of the Australian Federal Police v Xin (No 2) [2024] NSWSC 1606
Elcham v Darling Island Sydney Pty Ltd [2005] NSWSC 448

Category: Procedural rulings

Parties: Daniel Charles Pullicin (Plaintiff)
Marcia Ann Pullicin (First Defendant)
Joan Phyllis Hazell (Second Defendant)
Martin Carmel Pullicin (Third Defendant)

Representation: Counsel:
M Condon SC (Plaintiff)
Solicitors:
Keypoint Law (Plaintiff)

File Number(s): 2025/00110610

Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

1. The plaintiff seeks urgent orders under Uniform Civil Procedure Rules 2005 (NSW) rr 10.6 and 10.14(1), (2) and or (3) concerning informal service of his summons on three defendants who are his siblings.

2. In his summons, the plaintiff seeks declarations that a purported deed between him and his siblings is not binding because he did not execute it, or otherwise, the deed ought to be set aside or varied pursuant to the Contracts Review Act 1980 (NSW). The plaintiff filed his summons shortly before the two-year limitation period under that Act expired, namely, in March 2025. This application is time-critical because the summons will become stale if not deemed to have been served by close of business today, unless an extension of time is granted.

3. Should the informal service be ineffective, the plaintiff’s summons alternatively seeks an order extending the time for service of the summons, and the supporting affidavit pursuant to r 1.12 UCPR. However, that issue will be stood over to the next return date of the summons on 9 October 2025 before the registrar.

Attempts to serve the documents upon the defendants

4. In the last ten days, the plaintiff's lawyers have engaged in a flurry of activity in an attempt to personally serve each of the defendants, all of which have been unsuccessful. However, the plaintiff's lawyers have also left the summons at the defendants’ residential addresses, sent emails to the defendants’ email addresses, made telephone calls and sent text messages to the defendants’ mobile phones. No response has been received to any of those communications.

5. The plaintiff’s solicitor explains the time between the commencement of the proceedings and these recent attempts to serve the defendants, which included medical circumstances of the plaintiff, and the solicitors preparing witnesses and documentation necessary for the future evidence to be deployed in the plaintiff’s proceedings.

Rule 10.14(1) and (3)

6. Each of the defendants are in a slightly different category for the purposes of the application of parts of r 10.14. Rule 10.14(1) concerns circumstances where personal service appears not to be practicable and provides that the Court may direct that instead of such service, steps are taken to bring the document to the notice of the person concerned.

7. Rule 10.14(3) appears to be a slightly different test and enquiry. It provides that if “steps have been taken otherwise than under an order under the rule for the purpose of bringing the document to the notice of the person concerned, the Court may, by order, direct the document be taken to have been served on that person on a date specified in the order”.

8. As was recently observed by Faulkner J in Commissioner of the Australian Federal Police v Xin (No 2) [2024] NSWSC 1606 at [41], unlike the Court’s discretion to order substituted service under r 10.14(1) of the UCPR, the discretion to confirm informal service is not concerned with:

… the practicability of service on the person. Rather, it is concerned with whether steps have already been taken for the purpose of bringing the relevant document to the notice of the person concerned. If such steps have been taken, the Court may make an order under UCPR 10.14(3) regardless of the practicability or impracticability of further steps being taken. In such a case, an order under UCPR 10.14(3) may be appropriate to facilitate the just, quick and cheap resolution of the real issues in the proceedings…

9. The purpose of r 10.14(3) is to relax the strictures imposed upon an applicant for substituted service: cf Elcham v Darling Island Sydney Pty Ltd [2005] NSWSC 448 at [33] (Campbell J).

First defendant

10. In relation to the first defendant, in addition to the sending of messages and emails, an attempt was made to serve the summons on a solicitor who, in January 2025, had instructions to accept service on behalf of the first defendant, and had informed the plaintiff’s solicitors of such. The plaintiff’s senior counsel submitted that such communication amounted to an “acknowledgment” for the purposes of r 10.6, and provided a means for the plaintiff to serve the first defendant.

11. I note that after attempted service that way, the solicitor informed the plaintiff’s solicitor that the instructions to accept service had been withdrawn. The time at which those instructions were withdrawn was not disclosed. Because of the below reasons, I consider it unnecessary to reach a concluded view about whether the solicitor’s email in January 2025 was sufficient to give rise to an acknowledgment or undertaking for the purposes of r 10.6.

12. As noted, the summons has already been emailed and sent by text message to the first defendant. It is also proposed that a copy of the summons be affixed to the door of the first defendant’s residential premises in Queens Park by close of business today.

13. In relation to the historical provision of the summons, an order is sought pursuant to r 10.14(2), but possibly, more relevantly, r 10.14(3), that those steps give rise to the conclusion that the summons has been brought to the attention of the first defendant. The intention to affix a copy of the summons to the first defendant’s residential address today is proposed to satisfy r 10.14(1).

14. The plaintiff’s senior counsel accepted that on one view, it may be difficult to conclude that it is not impracticable to serve the first defendant personally because to date, no attempt has been made to serve the first defendant at that Queens Park residential address. However, the purpose of the rules is to bring a document to the notice of the person concerned, and to allow steps to be taken that will be considered almost equivalent to personal service.

15. It is well-accepted that any exercise of the Court’s discretion ought to be informed by the overriding purpose of civil litigation set out in s 56(1), and the objects of case management outlined in s 57(1), of the Civil Procedure Act 2005 (NSW): see, eg, Capral Ltd v DNV AS [2024] NSWSC 96 at [78] (Nixon J).

16. I am satisfied for the purposes of the first defendant that upon a copy of the summons being affixed to the door of the first defendant’s premises today, together with the other steps that have already been taken, the first defendant will be on notice of the summons.

Second defendant

17. In relation to the second defendant, the summons has been sent to the second defendant’s email address and mobile phone number and left at the second defendant’s residential address.

18. Further, a process server made attempts to personally serve the second defendant, which were unsuccessful, but in circumstances where it appears that the second defendant was at the residential address.

19. In all those circumstances, I consider that the attempts that have been made are sufficient for the purposes of r 10.14(3).

Third defendant

20. The summons has been sent to the third defendant’s email address, mobile number and left at the third defendant’s residential address.

21. The process-server observed that the residential address appeared unoccupied. Over the various occasions when personal service was attempted, however, mail in the letterbox appeared to have been collected on later visits.

22. I am satisfied that the steps that have been taken are sufficient to bring the summons to the attention of the third defendant.

Conclusion

23. In reaching the conclusions above, I am mindful of the authorities to which I was taken, and consider that here, the nature of the dispute which is between siblings is a relevant consideration, in circumstances where the parties are not strangers to each other and steps have been taken to bring the summons to the attention of the defendants. It is also important that the proceedings progress as efficaciously as possible to facilitate their just, quick and cheap resolution: see s 56 Civil Procedure Act.

24. I consider it appropriate to make the orders sought by the plaintiff in relation to informal service.

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