By Hayley Hitch, a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.
The methods and requirements of service vary from document to document and differ between legislative instruments. It is vital that at all times, the method of applicable service relevant to the document you are attempting to serve is confirmed with the relevant legislation and/or case law to ensure that the correct steps have been taken and no disadvantage/damage has been incurred by you or your client.
In Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216, the requirements of service by post of an originating process were determined. In order to comply with service by post, the following must be proved in an affidavit of service:
- That the envelope bore the correct name and address;
- That the envelope contained the relevant document to be served;
- That the envelope bore the correct cost of postage; and
- That the envelope was placed in the post.
In the Northumbrian case, the Plaintiff served its Statement of Claim by posting the item to the solicitors of the Defendant. It was found that evidence stating that the postage item was left in a mail tray within an office did not prove that the item was placed in the post (item 4 above). Therefore service of the Statement of Claim was defective. Furthermore, the deponent failed to provide proof that the correct cost of postage was placed on the envelope.
The Northumbrian case made evident the importance of effective service. In the circumstances, the proceedings were stood over to a later date in order for the Plaintiff to comply with service requirements.
To ensure you are serving your documents effectively, ensure to check the relevant legislation on each occasion. It is our recommendation that, where possible, it is best to serve documents personally by use of a process server to ensure the document is brought to the attention of the relevant individual or company.
If you are unsure of the service requirements of your documents or require assistance, please do not hesitate to contact our office on (02) 9635 7966.
Read the article/judgment here
If you would like more information or advice in relation to insolvency, restructuring or debt recovery law, contact Hayley Hitch at hayleyh@matthewsfolbigg.com.au, or a Principal of the Matthews Folbigg Insolvency, Restructuring & Debt Recovery Group:
Jeffrey Brown on (02) 9806 7446 or jeffreyb@matthewsfolbigg.com.au
Stephen Mullette on (02) 9806 7459 or stephenm@matthewsfolbigg.com.au
