Hoop & Javelin Holdings Limited v BT Projects Pty Limited (In Liq) (No 5) [2010] FCA 229 (11 March 2010)

Last Updated: 16 March 2010

FEDERAL COURT OF AUSTRALIA

Hoop & Javelin Holdings Limited v BT Projects Pty Limited (In Liq) (No 5) [2010] FCA 229

Citation:		Hoop & Javelin Holdings Limited v BT Projects Pty Limited (In Liq) (No 5) [2010] FCA 229
Parties:		HOOP & JAVELIN HOLDINGS LIMITED (A COMPANY INCORPORATED IN MALTA) v BT PROJECTS PTY LIMITED (IN LIQUIDATION) (ACN 097 995 698), INTABILL, INC (A COMPANY INCORPORATED IN THE BRITISH VIRGIN ISLANDS), DANIEL KIM TZVETKOFF and SALVATORE SCIACCA
File number:		NSD 597 of 2009
Judge:		LOGAN J
Date of judgment:		11 March 2010
Legislation:		Federal Court Rules
Date of hearing:	11 March 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	12
Solicitor for the Applicant:	Norton Rose
Solicitor for the Respondents:	No appearance by the Respondents

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 597 of 2009

BETWEEN:

HOOP & JAVELIN HOLDINGS LIMITED (A COMPANY INCORPORATED IN MALTA) Applicant

AND:	BT PROJECTS PTY LIMITED (IN LIQUIDATION) (ACN 097 995 698) First Respondent INTABILL, INC (A COMPANY INCORPORATED IN THE BRITISH VIRGIN ISLANDS) Second Respondent DANIEL KIM TZVETKOFF Third Respondent SALVATORE SCIACCA Fourth Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	11 MARCH 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The filing of a notice of motion by the applicant in respect of substituted service in relation to directions for the further conduct of the proceeding against the third respondent be dispensed with.
2. The applicant give notice of the making of these directions by sending a copy of the order by prepaid post to the third respondent at Unit 103/252 Hedges Avenue Mermaid Beach Q 4218 in an envelope marked “Important Court documents relating to Federal Court proceeding NSD597/2009” and by further sending a copy of the order by prepaid post in an envelope, like marked, to the third respondent care of Mr Kim Tzvetkoff, 35 Boscombe Road Brookfield Q 4069.
3. Service of these directions be deemed to have been effected upon Mr Tzvetkoff seven days after posting of the order in accordance with these directions.
4. The applicant file an affidavit attesting to the serving of these directions in accordance with this order within seven days of the posting of this order.
5. The third respondent file and serve a Fast Track Response and a notice of address for service on or before 26 March 2010.
6. The third respondent file and serve any evidence upon which he intends to rely including expert evidence by 30 April 2010.
7. The applicant have liberty to apply on two days’ notice, that notice, in default of the filing and service by the third respondent of an address for service, being sufficiently given if sent by prepaid post to the addresses specified in this order.
8. The third respondent pay the applicant’s costs of and incidental to the application for substituted service and the directions hearings on 5 March 2010 and on 11 March 2010 with express reservation as to whether the costs should be paid on an indemnity basis.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 597 of 2009

BETWEEN:

HOOP & JAVELIN HOLDINGS LIMITED (A COMPANY INCORPORATED IN MALTA) Applicant

AND:	BT PROJECTS PTY LIMITED (IN LIQUIDATION) (ACN 097 995 698) First Respondent INTABILL, INC (A COMPANY INCORPORATED IN THE BRITISH VIRGIN ISLANDS) Second Respondent DANIEL KIM TZVETKOFF Third Respondent SALVATORE SCIACCA Fourth Respondent

JUDGE:	LOGAN J
DATE:	11 MARCH 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Hoop & Javelin Holdings Limited (Hoop & Javelin) wish to press the claim against the third respondent (Mr Tzvetkoff). Mr Tzvetkoff has previously been represented by a firm of solicitors, Cronin Litigation. At an earlier interlocutory hearing that firm attended and indicated that they did not have further instructions. I gave, to the person attending at that time, advice that the Federal Court Rules made particular provision for the withdrawal of a firm of solicitors. Unfortunately, it appears that that counselling, as to the observance of the Court’s rules, has not resulted, at least as yet, in the filing of a notice of withdrawal and the provision of an alternative address for service, in respect of Mr Tzvetkoff.
2. Mr Tzvetkoff became a bankrupt, earlier this year, upon the filing of a debtor’s petition. In an earlier interlocutory judgment I expressed the view that his becoming a bankrupt did not have the effect of rendering the particular claim which Hoop & Javelin seek to make, a debt provable in his bankruptcy.
3. Hoop & Javelin’s desire to press the case has manifested itself in endeavours to serve Mr Tzvetkoff with directions proposed for the further conduct of the case. Initially that took the form of an attendance by a process server at Unit 103, 252 Hedges Avenue, Mermaid Beach, on 3 March this year. At that time an exchange of conversation occurred between the process server, a Mr Williams, and a female who chose not to identify herself. The conversation was in these terms: “Does Daniel Kim Tzvetkoff live here?” The female would not comment. Mr Williams then said, “I have documents for Daniel Kim Tzvetkoff. Will you see that he gets them?” And the female replied, “Yes.”
4. That address at Hedges Avenue, Mermaid Beach, is an address that Mr Tzvetkoff has chosen to give his trustee in bankruptcy, for the purpose of the administration of his bankrupt estate.
5. The documents left, at that time, gave notice of particular directions which had been made in the case, in relation to the fourth respondent, and also gave notice of a directions hearing to occur in this Court on 5 March 2010, at which time it was proposed that directions be made in relation to the case, insofar as Mr Tzvetkoff was concerned. On 5 March 2010 Mr Tzvetkoff did not appear. I was not satisfied on the material, then to hand, that there was a case or the making of an order for substituted service. Hoop & Javelin has, though, caused further inquiries to be conducted and also further attempts, personally, to serve Mr Tzvetkoff, to be made, including in that regard, the giving of notice by letter that it was proposed, today, to seek orders in respect of substituted service. It has done so by means which are related in some detail in an affidavit of Mr Ryan John Grob. Suffice it to say that contents of that affidavit give further confidence as to the likelihood that documents directed to Unit 103, 252 Hedges Avenue, Mermaid Beach will come to the attention of Mr Tzvetkoff.
6. Apart from the association with his bankruptcy administration, the Hedges Avenue address is also one which appears on searches of Australian Securities and Investment Commission (ASIC) records, in respect of an ASIC personal name extract for him.
7. The inquiries conducted by Hoop & Javelin, as related by Mr Grob, further disclose that Mr Tzvetkoff’s father, a Mr Kim Tzvetkoff, currently resides at 35 Boscombe Road, Brookfield. Mr Grob has spoken with Mr Kim Tzvetkoff. He has agreed to pass on Mr Grob’s telephone number to his son. To date, there has been no contact by Mr Tzvetkoff, with Mr Grob at that telephone number. The father, Mr Kim Tzvetkoff, did, though, confirm to Mr Grob, as well, that he can accept mail on behalf of his son, Daniel Tzvetkoff, the third respondent. My assessment of the evidence read today, which comprises the affidavit of Mr Grob, the earlier affidavit of Mr Williams and a, yet, further affidavit of Mr Williams, is that Mr Tzvetkoff is endeavouring to avoid personal service.
8. My further assessment is that, as I have mentioned, there is an inherent likelihood that mail directed to the Hedges Avenue, Mermaid Beach address would come to his attention. Further, there is an inherent likelihood that mail addressed to him, care of his father, at the Brookfield address, which I have mentioned, would also come to his attention. I am also satisfied that there has been a sufficiency of notice, by way of correspondence directed to the Hedges Avenue, Mermaid Beach address, in respect of the prospect of an application for substituted service being made today.
9. In the circumstances of this case, and having regard to that, it seems to me that it would be an unnecessary and unwarranted cost burden on Hoop & Javelin to require the bringing of a formal notice of motion. Such a course was proposed on 5 March 2010 but events over the period since then have made it an unnecessary and burdensome step to require that formal notice to be given. I propose, therefore, to make orders, the effect of which has already been canvassed in the course of submissions with Hoop & Javelin’s representative, which would deem service to be effected upon Mr Tzvetkoff seven days after the posting, by pre-paid letter post, of directions for the further conduct of the case. An affidavit attesting to the mailing of the directions in accordance with the order that I propose to make will have to be filed by Hoop & Javelin. I dispense with the requirement for the filing of a notice of motion in respect of substituted service.
10. The orders, as originally proposed in respect of the further conduct of the case, so far as Mr Tzvetkoff was concerned, provided for an initial step to be taken by 19 March 2010 so far as a fast track response was concerned. Given the course proposed now in respect of substituted service, that probably does not allow him sufficient time. I therefore propose to enlarge, by one week, the times as have already been proposed in orders foreshadowed in correspondence directed to Mr Tzvetkoff. In other words, what will be enlarged by one week are the times for the filing of a fast track response and any evidence upon which he proposes to rely. The directions made today will reflect those enlarged times.
11. Hoop & Javelin has also been put to unnecessary expense, in my opinion, in relation to the question of service in relation to Mr Tzvetkoff. It should, at the least, have its costs of and incidental to the application for substituted service and for the directions hearings which occurred on 5 March 2010 and today. I will expressly reserve the question as to whether it ought to have those costs of an indemnity basis. For the present, the orders will be that it have its costs with a reservation as to whether those costs ought to be on an indemnity basis. In that regard it seems to me that Mr Tzvetkoff ought to be allowed an opportunity to be heard as to whether taxation should occur at some higher scale.
12. I will direct that the solicitors for Hoop & Javelin bring in short minutes of order today in respect of orders proposed, both as to substituted service and directions for the further conduct of the case. I will further direct that those orders and directions be passed and entered forthwith.
13. I will add a further order which is that the Applicant have liberty to apply on two days’ notice. That notice, in default of the giving of the filing and service by Mr Tzvetkoff of an address for service being sufficiently given if sent by pre-paid letter post to the addresses specified in the order. The other order that I should make is that the third respondent file and serve a notice of address for service with his fast track response.
    

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 15 March 2010