Upper Hunter Shire Council v NSW Historic Sites and Railway Heritage Company Pty Ltd atf Hunter Valley Railway Trust

Category: Procedural rulings

Parties: Upper Hunter Shire Council (Applicant)
NSW Historic Sites and Railway Heritage Company Pty Ltd atf Hunter Valley Railway Trust (First Respondent)
Cheryl Richards (Second Respondent)

Representation: Counsel:
A Guerrero (Applicant)
C Richards (In person) (First Respondent)
N/A (Second Respondent)
Solicitors:
Lindsay Taylor Lawyers (Applicant)
N/A (First Respondent)
N/A (Second Respondent)

File Number(s): 2026/208088

Publication restriction: Nil

JUDGMENT

An Application for Substituted Service is Made

1. By notice of motion filed on 3 July 2026, the applicant, the Upper Hunter Shire Council (“the Council”), seeks orders for substituted service of a summons filed on 20 May 2026 on the second respondent in Class 4 proceedings, Cheryl Richards. The orders are sought pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

2. In the alternative, the Council seeks orders pursuant to r 5.2 of the UCPR that the first respondent, NSW Historic Sites and Railway Heritage Company Pty Ltd (“Railway Heritage Company”), provide discovery of documents that would assist in ascertaining the whereabouts of Cheryl Richards.

3. The principal proceedings concern the placing and storage of four train carriages by Railway Heritage Company on Lot 2 of DP 1031516, otherwise known as 45 Salisbury Street, Blandford (“the property”). The Council alleges that both the placing and storage of the carriages was development that required consent and that none was granted. The Council seeks, among others, an order that Railway Heritage Company remove the carriages.

4. No orders are sought against Cheryl Richards, but she is a necessary party to the proceedings by reason of her ownership of the property (Ross v Lane Cove Council [2014] NSWCA 50).

5. The application is opposed by Railway Heritage Company, and in particular by the sole director of that corporate entity, Chris Richards.

6. For the reasons below, the Court makes orders for substituted service.

Attempts are Made to Personally Serve Cheryl Richards

7. In support of the motion, the Council read two affidavits affirmed by Dimitrious Havadjia, a solicitor for the Council. The first was affirmed on 3 July 2026 (“the first Havadjia affidavit”). The second was affirmed on 13 August 2026 (“the second Havadjia affidavit”). Both affidavits detail attempts made by the Council to effect personal service of the summons and accompanying documentation on Cheryl Richards.

8. The first attempt took place on 25 May 2026. Havadjia arranged for a process server to attempt service of the summons at two addresses in Blandford, namely, 36 Debenham Street and the property. A title search of the latter address indicated that it is owned by Cheryl Richards.

9. A report was sent to Havadjia on 26 May 2026, in which the process server explained why service had not been effected. The property appeared to be abandoned. Cheryl Richards was also not present at the Debenham Street address but a male occupant was. A neighbour notified the process server that the male occupant with whom the process server had spoken at 36 Debenham Street was “Chris Richards”.

10. In an affidavit of service sworn 3 July 2026, the process server, Gavin Bellamy, confirmed that the man that he spoke to at the latter property was Chris Richards. Bellamy also deposes to Chris Richards having told him that he “does not know a Cheryl Anne Richards” and that he could not “provide any other information” as to her whereabouts.

11. The second attempt occurred on 30 June 2026. A “skip trace” report was produced for the Council. The skip trace report collated personal details about Cheryl Richards, including alternative residential addresses. One of these was 1-3 Belletree Street, Gundy. Therefore, on 30 June 2026, a process server went to that property. Its access gate was secured with a chain and padlock. The process server placed an envelope containing the summons in a mailbox at that address.

12. The third attempt was on 1 July 2026. Havadjia emailed the summons and accompanying documentation to an email address that the skip trace report indicated belonged to Cheryl Richards. An automated response email was sent back, informing Havadjia that the message could not be delivered to the nominated inbox.

13. A final attempt at personal service was made on 2 July 2026. A process server went to 13 Lenord Street, Werris Creek, another property that the skip trace report stated was owned by Cheryl Richards. Service could not be effected because a tenant, and not Cheryl Richards, was residing there.

14. The service report subsequently prepared by the process server noted that on 2 July 2026, they called a phone number that the skip trace report indicated belonged to Cheryl Richards. A person who identified herself as Cheryl Richards answered and the following exchange was recorded:

At 3:04pm, I received a return telephone call from XXXX XXX 094 and spoke with a female who identified herself as Cheryl Richards. After a brief and amicable conversation, Cheryl Richards asked me why I was calling her. I identified myself and informed her that I had urgent court documents requiring personal service upon her. I then asked Cheryl Richards if she could let me know her current location so arrangements could be made to meet. Cheryl replied, “I will call you back when I get a chance”. She then ended the call.

15. Cheryl Richards never returned the process server’s call.

16. It is against this context that the Council sought orders for substituted service.

Legal Principles Governing Orders for Substituted Service

17. Part 10 of the UCPR regulates the service of documents. It applies to Class 4 proceedings in this Court by reason of Sch 1 to the UCPR.

18. Rule 10.14 of the UCPR relevantly sets out when the Court may make an order for substituted service:

10.14 Substituted and informal service generally

(1) If a document that is required or permitted to be served on a person in connection with any proceedings—

(a) cannot practicably be served on the person, or

(b) cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

…

(3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes—

(a) a statement as to the applicant’s knowledge of the whereabouts of the person to be served, and

(b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).

(4) Service in accordance with this rule is taken to constitute personal service.

19. In Hornsby Shire Council v Trives [2014] NSWLEC 41; (2014) 205 LGERA 241 (at [14]), the Court explained when orders for substituted service will generally be made:

14 The Court's power to direct substituted service depends on the impracticability of effecting ordinary service in accordance with the UCPR. Typically, but not exclusively, such orders are made because of a justified apprehension that a party may, or is, evading service, or will leave the jurisdiction (Alstom Ltd v Sirakas [2010] NSWSC 669 at [43]-[46]); or may dispose of assets that are the subject of the proceedings.

20. The Court must also be satisfied that the relevant documents are reasonably likely to reach a respondent, or to come to their knowledge, if the method of substituted service sought is adopted (Shanghai Chenggong Industrial Co Ltd v Chen [2025] NSWSC 723 at [28]; Atkinson v Crowley [2011] NSWCA 194 at [38] and Chappell v Coyle (1985) 2 NSWLR 73 at 77).

21. The making of an order pursuant to r 10.14 of the UCPR involves an exercise of discretion. This exercise is informed by ss 56 and 57(1) of the Civil Procedure Act 2005, which set out the overriding purposes of civil litigation and the objects of case management (Pullicin v Pullicin [2025] NSWSC 1105 at [15] and Capral Limited v DNV AS [2024] NSWSC 96 at [59]).

An Agent Seeks Leave to Appear at the Application

22. During the hearing of the application for substituted service (it was adjourned three times), the Railway Heritage Company was initially self-represented by Chris Richards.

23. It opposed orders for substituted service being made because Chris Richards was concerned that it would cause distress to his “wife”, Cheryl Richards, who he stated was in poor health. It was therefore proposed by Chris Richards that service could be accepted on her behalf if he obtained a power of attorney from her.

24. The Court adjourned the hearing of the motion to permit this to occur, but it ordered that the parties appear in person on the next occasion. It emphasised that it would need to see the original power of attorney.

25. When the matter was next before the Court, an individual by the name of “Ms Walker” sought leave to appear as an agent for the purpose of handing up the power of attorney and to accept service of the summons on behalf of Cheryl Richards. However, Walker did not appear as agent for either party and denied appearing as Chris Richards’s agent.

26. It also became apparent that there had been non-compliance with r 7.7 of the Land and Environment Court Rules 2007 insofar as the information required by r 7.7(1) had not been provided to Chris Richards. In these circumstances, the Court declined to exercise its discretion pursuant to s 63 of the Land and Environment Court Act 1979 to permit Walker to appear as an agent in the proceedings.

27. Because leave was not granted to Walker to appear as agent and because Railway Heritage Company had not, as ordered, appeared in person, no power of attorney was before the Court.

The Court Exercises its Discretion to Order Substituted Service

28. As stated above, Chris Richards submitted to the Court that orders for substituted service were inappropriate because they could exacerbate Cheryl Richards’s existing medical issues.

29. The Court places little to no weight on this submission. First, there was no medical evidence of Cheryl Richards’s ill health before the Court.

30. Second, the exact nature of Chris Richards’s relationship with Cheryl Richards was unclear and Chris Richards was less than candid in this regard. Chris Richards had previously told a process server that he did not know Cheryl Richards. In separate communication with the Council, he asserted that it had “no legal right to probe into my personal relationship with Mrs Richards”. In Court, Chris Richards repeatedly described Cheryl Richards as his “wife”. But later, he described her as his “ex-wife”, and later still he told the Court that they had been estranged for approximately 15 years. Moreover, he was unsure whether, since becoming estranged, she had applied for divorce. If Chris Richards was estranged from Cheryl Richards, it begs the question of the source of his knowledge that she is too ill to be personally served or served by way of substituted service.

31. In addition, while the desire to minimise any distress to Cheryl Richards is laudable, this objective was presumably not assisted by having her execute a power of attorney.

32. In light of the lack of objective evidence put forward by Chris Richards as to the medical condition of Cheryl Richards, and the discrepancies in his description of his relationship with her, the Court did not accept that making substituted service orders would exacerbate any illness, if any, that Cheryl Richards was suffering from.

33. The circumstances detailed in the first and second Havadjia affidavits are enough to satisfy the Court that the summons and its accompanying documentation cannot be practicably served on Cheryl Richards. I am also satisfied that the first Havadjia affidavit meets the requirements of r 10.14(3A) of the UCPR.

34. Furthermore, it is reasonably likely that the methods of effecting substituted service proposed by the Council will bring the proceedings to Cheryl Richards’s attention (Zervas v Burkitt [2019] NSWCA 112 at [29]). Sending the summons to a phone number known to be used by her and posting a copy of the document to her social media accounts are steps reasonably likely to bring the proceedings to her knowledge. It is a matter for Cheryl Richards as to whether or not the documents are read by her (Filby v TEG Live Pty Ltd (No 2) [2026] NSWCA 36 at [18]).

35. In accepting the necessity for orders for substituted service, the Court is cognisant that it is a fundamental aspect of the administration of justice that a party against whom proceedings are brought has a reasonable opportunity of being heard (Bobolas v Waverley Council [2016] NSWCA 139; (2016) 92 NSWLR 406 at [91] and Smith v Shilkin (No 2*)* [2019] NSWSC 969 at [196]).

Orders

36. The Court orders are that:

37. the notice of motion is granted;

38. pursuant to r 10.14(1) of the U**niform C**ivil P**rocedure R**ules 2005 (“UCPR”), service of the summons filed on 20 May 2026 can be effected by the applicant undertaking the following:

(a) sending a copy of the summons by SMS to xxxx xxx x94 by no later than 5:00 PM on 14 August 2026; (b) serving a copy of the summons on the second respondent at 36 Debenham Street, Blandford by no later than 5:00 PM on 21 August 2026, or otherwise leaving a copy of the summons in the mailbox if the second respondent is not at that property at the time of attempted service, and (c) sending a copy of the summons to the following social media profiles by no later than 5:00 PM on 14 August 2026:

(i) www.facebook.com/cheryl.richards.264335/; (ii) www.facebook.com/cheryl.richards.12764; and (iii) www.linkedin.com/in/cheryl-richards-a2a883117/;

3. pursuant to r 10.14(2) and (4) of the UCPR, the summons is taken to have been personally served on the second respondent upon the applicant's compliance with order 2;
4. the applicant’s costs of the motion are reserved; and
5. the first and second respondents are to serve their responses to the summons by 11 September 2026.

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