Zorbas v Titan Properties [2005] NSWSC 486 | Case summary

5505/04 PETER ZORBAS v TITAN PROPERTIES (AUST) PTY LTD & 2 ORS JUDGMENT - Ex Tempore 1 HIS HONOUR: This is an application under Part 9 rule 11 Supreme Court Rules 1970 for confirmation of informal service. That rule provides: "Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order." 2 On 14 March 2005 I gave a judgment in this matter and made orders for specific performance of a contract for sale of land at the suit of the vendor: Zorbas v Titan Properties (Aust) [2005] NSWSC 213. 3 A further hearing occurred on 5 May 2005. By that time the date on which I had ordered the contract to be completed had already passed, but the contract was still not completed. The hearing on 5 May 2005 involved an application by the plaintiff for a more specific order than the one which had originally been granted, requiring specific performance of the contract. In Zorbas v Titan Properties (Aust) [2005] NSWSC 440 I gave reasons why it was appropriate to make that order. 4 The present application is one which seeks confirmation of informal service of the orders made on 11 May 2005, following the hearing of 5 May 2005. It seeks that confirmation concerning service upon the directors of the company, the first defendant, which has been ordered to specifically perform the contract. As outlined in my judgment of 5 May 2005, the plaintiff is pursuing a plan of seeking to enforce the orders by committal or sequestration of the property of the directors of the defendant. Part 42 rule 6(2) Supreme Court Rules 1970 permits such a course to be followed. However, Part 42 rule 8(2) Supreme Court Rules 1970 provides: "Subject to the rules, where the person bound by a judgment is a corporation the judgment shall not be enforced by committal of an officer of the person bound or by sequestration of the property of an officer of the person bound unless, in addition to service under subrule (1) on the person bound - (a) a minute of the judgment is served personally on the officer, and (b) if the judgment requires the person bound to do an act within a specified time, the minute is so served before that time expires." 5 The directors have proved difficult to serve, in circumstances which I shall recount in a little more detail. It is because of that difficulty in service that the plaintiff seeks orders for confirmation of informal service on the directors. 6 As recorded in my second judgment in this matter on 5 May 2005, the re-listing of the matter was notified to the first defendant at the first defendant's registered office, and also to the first defendant's solicitor, Mr Tannous, who is also the solicitor on the record for the second and third defendants, and also to each of the two directors. The second and third defendants are companies which have the same directors as the first defendant. 7 As recorded in paragraph 6 of my reasons for judgment of that day, Mr Howen of counsel appeared at Court, instructed by Mr Tannous. Because Mr Howen was uncertain about whether he had a right to appear for the company, given that a receiver and manager had recently been appointed to it, I granted him leave to appear as an amicus curiae. I allowed, on that day (as recorded in paragraph 26 of my reasons for judgment) an affidavit put forward by one of the directors, Mr Yazbek to be filed in Court and read. That affidavit was one which, in broad terms, said that the first defendant did not have any money. It was made the basis, by Mr Howen, of a submission that making any further order for specific performance of the contract would be futile. 8 On 5 May 2005 I indicated in principle that I would make a further order, and stood the proceedings over to 4.15 pm on Tuesday 10 May 2005, to enable an order of the type I had indicated I would make to be brought in. 9 On 10 May 2005 Mr Tannous, solicitor appeared. The Court record notes him as appearing for the first defendant and for the two directors of the first defendant. He put submissions about the form of the order which should be made. The form of the order (which is set out at the conclusion of the reasons for judgment in Zorbas v Titan Properties (Aust) [2005] NSWSC 440) makes crystal clear the plaintiff's intention to embark on a procedure of seeking to enforce the orders against the directors. That draft order was the subject of discussion and argument on 10 May 2005. 10 The actual order was made on 11 May 2005, because on 10 May 2005 a small evidentiary detail still needed to be attended to. 11 On 11 May 2005 the solicitors for the plaintiff forwarded to Mr Tannous's firm a letter attaching a copy of the orders made on 11 May. It said that it was forwarding "by way of service on the first defendant". On the same day, two other copies of the orders were served by facsimile to Mr Tannous's firm, under separate covering pages, one of them stating it was, "by way of service on Fadi Nasr", the other saying it was, "by way of service on Daiak Yazbek." 12 The registered office of the first defendant is at 1/108 Haldon Street Lakemba, care of a taxation agent. The first defendant was served with the order at that address on 11 May 2005. 13 The ASIC records show that each of the directors of the first defendant has an address at 74 Oatley Avenue Oatley, New South Wales. An attempt to serve the directors personally on 11 May 2005 at 74 Oatley Avenue Oatley proved unsuccessful. That address is a private residential address. The process server was unable to induce anyone to answer the front door. At the rear of the premises he spoke with a female, apparently in occupation, aged about 30 years with a young child. When he asked to speak with the directors (naming them) she said, "No, not here. They don't live here. They are related to my sister. They live in Lakemba." The process server said to the female occupant, "This is to do with Titan Properties and Delta", to which she replied, "That was in Court yesterday. The solicitor is Charlie Tannous, he can take any of those documents. If you leave me your telephone number I will get them to ring you." The process server left the telephone number with her, but has not received any call back. 14 A check in the Australian Population Index shows both Mr Nasr and Mr Yazbek have their address at 74 Oatley Avenue Oatley. 15 Another attempt at personal service was made on 15 May 2005. A process server went to 74 Oatley Avenue Oatley. He attended at one of the two townhouses on the site, 74A Oatley Avenue Oatley and asked for Mr Yazbek and Mr Nasr. The occupant said to him "They live next door". He went to the property next door, but could not attract the attention of anyone by ringing the door bell. He went to the rear of the premises and knocked on the glass door. There was a female inside. He asked to speak with Mr Yazbek or Mr Nasr, to which she said "Yes this is Titan Properties but get off the property or I will call the police." The process server's attempt to continue to converse with this woman resulted in her keeping on repeating "Get off the property or I will call the police." 16 Mr Magney, solicitor for the plaintiff, faxed Mr Tannous on 13 May 2005 informing him of the response which the process server had received upon attempts to serve on 11 May 2005, informing Mr Tannous that an electoral roll search showed that both of his clients' home address was 74 Oatley Avenue Oatley, stating that: "At Court on 11 May 2005 you informed his Honour that you represent Fadi Nasr and Daiak Yazbek and the purpose of this letter is to seek your advice as to whether service can be effected on Fadi Nasr and Daiak Yazbek personally at your office at a mutually convenient time prior to 4 pm Tuesday 17 May 2005. Alternatively, we can arrange for our process server to serve your clients at another address and at a time and place which will be agreed. Would you please let us have a response no later than 11am on 16 May 2005."

The date "11 May" in this letter is a typographical error for "10 May" . 17 Mr Tannous replied on 16 May 2005 saying: "We refer to your facsimile dated 13 May 2005 and confirm that we do not have instructions to accept service of any process you wish to serve on Mr Daiak Yazbek or Mr Fadi Nasr. Further to our conversation in the Supreme Court, please find enclosed a sworn affidavit from Mr Nasr. We will also forward to you an affidavit from Mr Yazbek shortly. We confirm that we have advised you on numerous occasions that Titan Properties (Aust) Pty Ltd does not have sufficient funds to complete the purchase of the above property. This advice was also given to you prior to you obtaining the first specific performance order. Notwithstanding this advice, your client has expended money in pursuing a specific performance order. Furthermore, it appears that your client may also seek to obtain orders against the directors of the company. We put you on notice that any proceedings undertaken by your client against our clients will be defended and that we intend relying upon this letter on the question of costs." 18 The affidavit from Mr Nasr which was enclosed was one which gave his address as 74 Oatley Avenue Oatley, and attached what he swore was a statement of his assets and liabilities, and of the assets and liabilities of the first defendant. 19 On 16 May 2005 Mr Magney received from Mr Tannous's firm another communication which enclosed an affidavit sworn by Mr Yazbek, which gave his address at 74 Oatley Avenue Oatley, and attached what he swore was a statement of his assets and liabilities. 20 The purpose of Part 9 rule 11 is to ensure that merely by making themselves scarce, people cannot avoid compliance with judgments and orders of the Court of which they are well aware. It is, of course, a fundamental requirement of justice that orders not be made detrimental to a person unless they have been given an opportunity to make submissions about whether those orders should be made, or alternatively there are other reasons why notice should be dispensed with. 21 As Bryson J said in WFM Motors Pty Limited v Maidwell (23 April 1993, unreported); BC 9301698, at 5 of BC "Under Part 9 Rule 11 informal service may be confirmed by an order directing that a document taken to have been served on a person on a date specified in the order. The substantial purpose of achieving procedural justice by notice of a claim, which underlies the requirement for service of process, has obviously been achieved by about 2 or 3 April in that it is plain that about that time the plaintiff's claim, the contents of the statement of claim and the terms of the notice required by the rules to be given to a defendant outside New South Wales actually came to the notice of the defendant and legal advisors representing him."

Zorbas v Titan Properties

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