By Jonathon Dooley and Heydon Wardell-Burrus -
Snapshot
- In Nitro Circus Touring Australia Pty Ltd v Lenzoni [2016] NSWSC 178, Hammerschlag J delivered judgment in respect of an application for default judgment following service on an overseas defendant.
- The decision contains an exposition of the relevant principles when documents are served under pt 11A of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) and the Hague Convention.
- A certificate of service from an overseas authority, which is in a form different from that contemplated by the UCPR, might be a sufficient basis for an application for default judgment under pt 11A.
Turin is a city in northern Italy, known for exquisite beauty and artistic expression of the highest order, as exemplified in its art galleries, opera houses, piazzas, and architecture.
For a time, there was also a plan for Turin to host Nitro Circus Moto Mayhem – a live action sports show. It seems that the creed of that show is: ‘If it’s got a motor, it must fly’. Ramps, explosions, flaming hoops, aerial motor bike stunts, snow mobiles, golf carts – maybe even a recliner with wheels and a passenger who would either be asleep or fearless. All this, and possibly more, was to be unleashed at the Turin Palaolympico.
But it was not to be. The promoter of the show (the defendant), an Italian resident, defaulted in making payments under a written agreement to the company that owned the rights to the show (the plaintiff), an Australian company. The agreement was governed by and construed in accordance with the laws of NSW.
The plaintiff commenced proceedings in the Supreme Court of NSW. It served a Summons and Commercial List Statement on the defendant pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Convention). Service pursuant to the Hague Convention is permitted by Part 11A of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The defendant did not enter an appearance. The plaintiff moved for default judgment.
On 4 March 2016, Hammerschlag J delivered judgment in Nitro Circus Touring Australia Pty Ltd v Lenzoni [2016] NSWSC 178. His Honour ordered judgment in favour of the plaintiff.
