Federal Court: Gated Housing Renders Personal Service Impractical
In the recent case of bCode Pty Ltd (in liq) v Holford [2018] FCA 798 the court was required to consider whether an order for substituted service may be granted where multiple attempts to personally serve a notice have been unsuccessful.
The case involved bCode, a mobile technology company, who had unsuccessfully attempted to serve documents on Troy Holford on numerous occasions. Mr Holford lived within a gated community in Sanctuary Cove. The community was monitored by a security team, and thus in order to gain access to Mr Holford’s residence, one was required to first contact the security team via intercom, who was to then contact the residence for access approval.
During the trial, Mr Russ, a commercial agent for bCode, gave evidence that on four occasions, he attempted to serve notice at the Sanctuary Cove address. Specifically, Mr Russ contended that on the first occasion, the guard told him that Mr Holford was abroad, however gave permission for Mr Russ to enter the premises and leave the documents with his son. Mr Russ declined this offer on the basis that he was required to personally serve the notice on Mr Holford.
When he returned a third time, Mr Russ once again contacted the security guard who subsequently phoned Mr Holford’s premises and spoke with a woman, who informed him that Mr Holford was still overseas. Mr Russ notified the guard that he now had authorisation to leave the documents with a resident at the address, however when the guard called back, there was no answer at the premises. On both other occasions Mr Russ was notified that there was no answer at Mr Holford’s address.
In considering bCode’s application, the court was required to determine whether personal service was ‘not practicable’ pursuant to r10.24 of the Federal Court Rules 2011. In doing so, the Gleeson J contended ‘that it is impracticable to effect personal service on Mr Holford since he resides in a secure housing estate where access is only permitted by security guards authorised by a resident’.
The court also heard evidence from bCode’s solicitor Laura Scotten, who verified that; Mr Holford is the owner of the Sanctuary Cove address, that his address in ASIC records is the Sanctuary Cove address and that he is the director and shareholder of Holford Properties Pty Ltd, which lists its principal place of business as at the Sanctuary Cove address. Ms Scotten also gave evidence that in late February 2018, Mr Holford had sent emails from a known email address.
According to this information, Gleeson J submitted that pursuant to the Federal Court Rules 2011, it was appropriate to substitute an alternate method of service. It was ultimately held that notice may been served on Mr Holford by post to the Sanctuary Cove address and by transmitting the documents to his email. Her Honour contended that the documents will be taken to be served seven days thereafter.
