Federal Court of Australia

Sampson (Trustee) v Zaki, in the matter of Van Vlijmen [2023] FCA 1287

ORDERS

THE COURT ORDERS THAT:

1.    Personal service of the Originating Application filed on 31 August 2023 and the accompanying Affidavit of David Henry Sampson sworn on 30 August 2023 be dispensed with.

2.    A signed and sealed copy of the Originating Application, the Affidavit of Mr Sampson and this order (together, the Documents), be served on the first respondent in the following manner:

(a)    sending the Documents by pre-paid ordinary post addressed to the first respondent at:

(i)    57 Lacey Road, Edmondson Park, New South Wales, 2174;

(ii)    Unit 1, 477 Princess Highway, Rockdale, New South Wales, 2216;

(iii)    PO Box 180, Rockdale, New South Wales, 2216; and

(b)    sending a photograph or screen shot of the Documents by SMS to the mobile telephone number 0403 666 745; and

(c)    scanning, attaching and sending the Documents by email to nzsolicitors@gmail.com.

3.    The Documents are deemed to be served on the first respondent five (5) days after the service in accordance with orders 2(a) to 2(c) above.

4.    Costs of this application be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J

A.    Introduction

1    Mr Sampson is the trustee of the bankrupt estates of Ms Margriet Van Vlijmen and Mr Willem Van Vlymen. By an Originating Application filed on 31 August 2023, he seeks, in each of those capacities, an order pursuant to s 100-5 of the Insolvency Practice Schedule (Bankruptcy), being Sch 2 to the Bankruptcy Act 1966 (Cth) approving the assignment by him of a cause of action in Supreme Court of New South Wales proceeding 2022/00329660 (Supreme Court proceeding).

2    In the Supreme Court proceeding Mr Sampson, again in each of the above-mentioned capacities, has filed a Statement of Claim in which he alleges relevantly that Mr Nader Zaki and Mr Malcom Carr – who are the first and second defendants in the Supreme Court proceeding and the first and second respondents in this proceeding – (1) acted as Mr Van Vlymen’s legal representatives pursuant to a retainer entered into in September 2016 between Mr Van Vlymen and Metro Lawyers (the trading name used by Mr Carr); (2) provided legal services to Mr Van Vlymen but failed to provide particular advice to him; and (3) thereby breached the duty of care they owed to Mr Van Vlymen and contravened ss 60 and 61 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth).

3    Mr Sampson seeks interlocutory orders for substituted service of the Originating Application and the accompanying affidavit of Mr Sampson.

B.    Background

Information available concerning Mr Zaki

4    The evidence on this interlocutory application establishes the following matters concerning Mr Zaki:

(1)    his residential address as recorded on the Australian Electoral Roll (as at 16 May 2023 and 21 September 2023) is 57 Lacey Road, Edmondson Park, New South Wales, 2174;

(2)    he is the owner of an active Australian Business Number 43 520 916 391, with a trading name “Leader Law Services” and a main business location of “NSW 2174” (notably, the same postcode as 57 Lacey Road); and

(3)    a search of registers maintained by the Law Society of New South Wales reveals that Mr Zaki is no longer registered as a legal practitioner in New South Wales but his law practice remains registered with the following details:

Class    Law Practice

Type    SOLE PRACTITIONER

Address    UNIT 1, 477 PRINCES HIGHWAY

    ROCKDALE NSW 2216

Postal Address    PO BOX 180

    ROCKDALE NSW 2216

Phone    0403 666 745

Firm Email    nzsolicitors@gmail.com

Region    ST GEORGE-SUTHERLAND

Main Office    ROCKDALE

    UNIT 1, 477 PRINCES HIGHWAY

5    The solicitor for Mr Sampson has also submitted that 0403 666 745 – the mobile telephone number recorded on the Law Society register – is the number that Mr Zaki used to communicate with Mr Van Vlymen and Ms Van Vlijmen.

Attempts to effect service or make Mr Zaki aware of this proceeding

6    The evidence establishes that the following attempts have been made to effect service or make Mr Zaki aware of this proceeding.

7    On 19 May 2023, Mr Richen Mojica, a solicitor in the employ of the solicitor for Mr Sampson, sent an email to nader@leaderlaw.com.au and nzsolicitors@gmail.com. The email address nader@leaderlaw.com.au, which was the email address used by Mr Zaki to communicate with Mr Van Vlymen and Ms Van Vlijmen, returned an automatic “undeliverable” report. There was no such report received for the email sent to nzsolicitors@gmail.com.au, which suggests that the email was delivered. The email was in the following terms:

Dear Mr Zaki,

We act for the following parties:

(a)    David Henry Sampson in his capacity as a Trustee of the bankrupt estate of Mr Willem Van Vlymen (First Plaintiff); and

(b)    David Henry Sampson in his capacity as a Trustee of the bankrupt estate of Ms Margiet Van Vlymen (Second Plaintiff),

in the proceedings before the Supreme Court of New South Wales in the Professional Negligence List against you as the First Defendant and Mr Michael Douglas Carr as the Second Defendant (Case Number: 2022/00329660) (Proceedings).

We have attempted to serve the Statement of Claim on you personally at your registered address as noted in the Law Society of New South Wales (LSNSW) register, which is Unit 1, 477 Princess Highway, Rockdale, NSW 2216. We enclose a copy of the solicitor search we conducted on the LSNSW website under your name for your reference. However, we were unable to serve the Statement of Claim on you because our enquiries indicate you do not conduct your law practice business at this address.

We have also attempted to serve the Statement of Claim on you at 9 Borambil Place, Oyster Bay, 2225, which appears to be an address connected to you. However, our enquiries indicate you do not reside at this address.

We have called you on your mobile phone at 0403 666 745 numerous times, but you have not answered or returned our calls.

We request you provide us with the address you wish to accept service of the Statement of Claim and a suitable date and time to meet with our representative to accept service of the Statement of Claim. Otherwise, please let us know if you wish to attend our office and a suitable date and time to accept service of the Statement of Claim.

...

We look forward to receiving your response.

(bold emphasis in original; underline emphasis added)

8    On 30 August 2023, Mr Mojica called the mobile number 0403 666 745. This call was not answered. Instead, a text message was received by Mr Mojica from that number: “Please text”. The following exchange of text messages then occurred:

Mr Mojica:    Hi Nader, How are you?

...    Who is this sorry. New phone

Mr Mojica:    My name is Richen from Teneo Corporate Lawyers. Could you please let me know your address for service. Please call me if you want to discuss.

9    No response was received.

10    On 24 September 2023 Mr Alan Cole, a Licensed Commercial Agent, attended 57 Lacey Road. He was unable to serve Mr Zaki with the Originating Application. Mr Cole saw a “For Lease” sign on the nature strip (with LJ Hooker shown as the leasing agent). Mr Cole had previously tried (again unsuccessfully) to serve Mr Zaki with the Statement of Claim in the Supreme Court proceeding at that address.

11    On 27 September 2023, Mr Cole called LJ Hooker. The LJ Hooker representative indicated that she could not provide Mr Zaki’s contact details to Mr Cole for privacy reasons. Mr Cole gave the LJ Hooker representative his contact details and requested her to email Mr Zaki and request him to contact Mr Cole. Mr Cole has not received any email or telephone calls from Mr Zaki.

C.    Consideration

12    Rule 8.06 of the Federal Court Rules (2011) (Cth) requires that an applicant personally serve an originating application on each respondent as soon as practicable and at least five days before the return date of the application. Rule 10.01 of the Rules provides that a document that is to be served personally on an individual must be served by leaving the document with the individual. Rule 10.24 of the Rules allows for substituted service. It provides:

If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c)    specifying that the document is taken to have been served:

(i)     on the happening of a specified event; or

(ii)     at the end of a specified time.

13    The Court also has the power to dispense with compliance with rr 8.06 and 10.01: r 1.34; Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603 at 622 [97] (Katzmann J).

14    In the context of the present application, r 10.24 requires consideration of whether it is not practicable to effect personal service of the application upon Mr Zaki. In this regard, inconvenience is insufficient but it is not necessary for an applicant to prove that it is impossible or futile to effect personal service: Ford, Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [14] (O’Bryan J). It is also not necessary to adduce evidence of a failed attempt to effect personal service or that such service is not possible: Zeitouni at 616 [66] (Katzmann J).

15    I am satisfied that it is not practicable to effect personal service upon Mr Zaki for the following reasons.

16    First, an attempt was made to effect such service at the address Mr Zaki has provided to the Australian Electoral Commission. It was unsuccessful, as was a previous attempt to serve the Statement of Claim in the Supreme Court Proceeding at that address.

17    Secondly, an attempt was made to effect personal service of the Statement of Claim in the Supreme Court proceeding upon Mr Zaki at the business address recorded for him on the Law Society’s register, but this was unsuccessful because it appears that he was not operating from that address (see [7] above). It follows that it would not be practicable to serve the Originating Application upon Mr Zaki at that address.

18    Thirdly, an attempt was made to contract Mr Zaki on the mobile telephone number that he used to communicate with Mr Van Vlymen and Ms Van Vlijmen and which he had provided to the Law Society as his contact number. The response to that call (see [8] above), including the absence of any attempt by the person who engaged in a text message exchange with Mr Mojica to assert that they were not Mr Zaki, suggests that that person is likely to be Mr Zaki and that he does not propose to co-operate with an attempt to effect personal service upon him.

19    Finally, attempts to engage with Mr Zaki, using the email addresses: (1) he previously used to communicate with Mr Van Vlymen and Ms Van Vlijmen; and (2) he provided to the Law Society were also unsuccessful.

20    Whilst it is not an express requirement of r 10.24 of the Rules, it is appropriate to consider whether the method of substituted service proposed would be likely to bring the Originating Application to Mr Zaki’s attention. If so, that is a factor in favour of making an order for substituted service.

21    The evidence set out above suggests that service by text message to the mobile telephone number 0403 666 745, and to the email address nzsolicitors@gmail.com, would likely come to the attention of Mr Zaki.

D.    CONCLUSION

22    For the reasons set out above, I will make the orders substantially in the terms of the orders sought by Mr Sampson.

Associate:

Dated:    27 October 2023