Arnold & Anor v Commonwealth Bank of Australia [2025] QDC 94

DISTRICT COURT OF QUEENSLAND CITATION: Arnold & Anor v Commonwealth Bank of Australia [2025] QDC 94 PARTIES: SCOTT MICHAEL ARNOLD (first defendant/applicant) & NICOLE MAREE ARNOLD (second defendant/applicant) v COMMONWEALTH BANK OF AUSTRALIA (plaintiff/respondent) FILE NO/S: BD 1160/24 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 8 July 2025 DELIVERED AT: Brisbane HEARING DATE: 30 June 2025 JUDGE: Grigg DCJ ORDER: 1. The application is dismissed. 2. I will hear from the parties as to costs. The parties are directed to file any material and written submissions (limited to two pages) as to costs within seven days. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where default judgment and an enforcement warrant were granted in favour of the plaintiff – where no notice of intention to defend or defence was filed – where the defendants apply to set aside default judgment and enforcement warrant – where the defendants contend they are not the named parties on Court documents – the ‘strawman’ duality – whether the defendants were properly served – whether the defendants were denied procedural fairness -- 1 of 11 -- 2 LEGISLATION: Australian Constitution s 51(xxiv) Constitution Act 1867 (Qld), s 2 Human Rights Act 2019 (Qld), s 31 Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 1999 (Qld), rr 106, 116, 286, 290 CASES: Embrey v Smart [2013] QSC 241 NNRM v The Commissioner of Police & Anor [2024] QDC 64 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 Re Brook and Delcomyn 143 E.R. 1184 Wilson v Queensland Police Service [2024] QDC 225 W R Carpenter Australia Ltd v Ogle [1997] QCA 383; [1999] 2 Qd R 327 SOLICITORS: Applicants self-represented Gadens Lawyers for the respondent Introduction [1] On 22 January 2025 default judgment was entered in this Court in favour of the plaintiff against the first and second defendants concerning an outstanding debt and for the recovery of possession of a property at Loganlea (Property), which was the subject of a mortgage and security for the debt (Judgment). The Judgment requires the first defendant and second defendant to pay to the plaintiff the amount of $315,600.65, including $17,503.08 for interest to 22 January 2025 and $5,182.20 for costs. The Judgment also entitles the plaintiff to recover possession of the Property against the first defendant. [2] On 24 June 2025 the defendants applied to the Court for orders to set aside the Judgment and an enforcement warrant issued 2 April 2025. [3] The defendants were self-represented at the application. Ground for setting aside the Judgment and Enforcement Warrant -- 2 of 11 -- 2 [4] The first defendant explained to the Court that the basis for their application is that they had no notice of the events leading up to the Judgment or the warrant, as they had not been properly served. Relevant Legislative Requirements Default Judgment [5] Rule 281 of the Uniform Civil Procedure Rules 1999 (UCPR), provides that where a defendant in a proceeding started by claim has not filed a notice of intention to defend within the time permitted, Part 1, Division 2 of Chapter 9 Ending Proceedings Early applies. Chapter 9, Part 1, Division 2 provides that in these circumstances a plaintiff may request a judgment by default for the amount claimed (and interests and costs) under rule 283 and may also file a request for judgment for the recovery of possession of land as against the defendant.1 [6] A precondition that must be satisfied before judgment may be given under Division 2 is that the plaintiff must prove service of the claim on the defendant in default.2 Setting Aside a Default Judgment [7] Pursuant to rule 290 of the UCPR, the Court has the power to set aside a default judgment, and the enforcement of that judgment as follows: 290 Setting aside judgment by default and enforcement The court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate. Rules for Service [8] Chapter 4 of the UCPR contains the rules for service. The starting point, where individuals are concerned, is that a person be personally served.3 Rule 105 requires that the originating process, the claim and the statement of claim, be served personally. 1 UCPR r 286(2). 2 Ibid r 282. 3 Ibid r 104. -- 3 of 11 -- 3 [9] Rule 106 sets out how personal service is performed as follows: 106 How personal service is performed (1) To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served. (2) However, if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the person’s presence and telling him or her what it is. (3) It is not necessary to show to the person served the original of the document. [10] Personal service may be affected by the placement of the document on the ground in a person’s presence and informing them what the document is. [11] If personal service of a document is not required, a document can be served by, among other things, leaving the document at a person’s “relevant address”4 or email address.5 A person’s “relevant address" means, relevantly here, the person’s address for service.6 [12] There are times when people cannot be found, or people resist service for one reason or another. In those circumstances, the Rules particularise how service can be affected in substitution for the usual methods of service.7 If it has become impracticable to serve a document, a Court may then make an order substituting a different method of serving the document. [13] The Court will be informed that service has been performed through the filing of an affidavit of service by the serving party.8 This affidavit of service sets out the steps taken by the server to serve the relevant documents to enable the Court to satisfy itself that service has been affected accordingly. Background to Judgment [14] The plaintiff commenced proceedings, by Claim and Statement of Claim, for the recovery of possession of the Property and outstanding monies said to be owed to it 4 UCPR r 112(1). 5 Ibid r 112(1)(e). 6 Ibid r 112(3). 7 Ibid r 116. 8 Ibid r 120. -- 4 of 11 -- 4 pursuant to a loan agreement and mortgage. The mortgage had been executed by the first defendant in favour of the plaintiff over the Property in 2009. The loan agreement was entered into between the plaintiff and first and second defendants under which the defendants were lent a principal sum of $286,000 from the plaintiff secured by the mortgage over the Property. [15] On 17 September 2024 an affidavit was filed by a process server confirming that on 3 September 2024 he served the first defendant with the Claim and Statement of Claim by way of personal service. The process server states that at the time of service he spoke to a person who identified themselves as “Scott Arnold” but that the first defendant refused to accept the documents and accordingly the process server explained the nature of the documents and then placed them in the first defendant’s presence. A process server was unable to affect personal service on the second defendant. The process server explained that when they attended the Property, a male occupant, who refused to identify himself, said the second defendant is not known and does not reside at the address. The process server was ordered off the property by the unidentified male. The process server made seven attempts to serve the second defendant at the Property between 25 June 2024 and 25 September 2024. Attempts were also made to call the first defendant and second defendant using their last known mobile numbers to no avail. A title search subsequently conducted by the solicitors for the plaintiff indicates the second defendant is and was at all relevant times the registered co-owner of the Property with the first defendant. That is, the address attended by the process server was the correct relevant address for the second defendant. [16] As the plaintiff was unable to personally serve the second defendant, on 6 November 2024, the plaintiff applied to the Court for an order for substituted service pursuant to rule 116 of the UCPR. Jarro DCJ was satisfied that it had been demonstrated that it was impracticable to personally serve the documents on the second defendant. On 13 November 2024 Jarro DCJ made orders that personal service on the second defendant be dispensed with and that pursuant to rule 116 of the UCPR the second defendant be served with the Claim and a copy of the Court’s orders in the following manner: (a) by leaving a copy in an envelope addressed to the second defendant at the Property; -- 5 of 11 -- 5 (b) by sending a copy by post to the second defendant to the address of the Property; and (c) by sending an email to the last known email address of the second defendant. [17] The Court ordered that the service could be deemed to be affected four business days after the plaintiff served the second defendant in accordance with each of those measures. [18] A further affidavit of service was then filed confirming that the order of Jarro DCJ of 13 November 2024 had been complied with. [19] Having heard nothing from the defendants, on 16 January 2025, the plaintiff applied for default judgment. Judgment was entered in favour of the plaintiff by the District Court Registrar on 22 January 2025. [20] On 24 January 2025, the plaintiff’s solicitor served the first defendant with a copy of the Judgment by posting a copy by prepaid ordinary post to the Property. [21] Following the Judgment, the plaintiff applied for the issue of an enforcement warrant for possession of land. An enforcement warrant for the possession of land was issued on 2 April 2025. The Bailiff of the Beenleigh District Court attended the property on 16 June 2025. The first defendant informed the Bailiff he would not be moving. The Bailiff left the eviction notice along with a copy of the warrant possession at the feet of the first defendant. The scheduling of an eviction has currently been stayed at the request of the plaintiff. [22] On 24 June 2025 the defendants applied to have the Judgment and enforcement warrant set aside because they had not been properly served. Submissions [23] The defendants contend that when the server attended the property to serve them with the Court documents, they did not recognise that the documents were intended for them because the names on the documents had been typed in “caps”; that is in uppercase format. The defendants told the Court they do not accept uppercase usage as proper English. The defendants cited as authority: (a) section 51(xxiv) of the Commonwealth Constitution; and -- 6 of 11 -- 6 (b) website excerpts on the rules of English Grammar. [24] Section 51(xxiv) of the Constitution states: 51. Legislative powers of the Parliament. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:- … (xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States. [25] The defendant cited a legal commentary which quotes from the decision of Re Brook and Delcomyn 143 E.R. 1184:9 Service, of course, is generally recognized as the foundation of jurisdiction in civil cases. No man can be legally bound by a judgment given behind his back and without his having had an opportunity of being heard. [26] The defendants contend that because they did not recognise the documents in the format their names were typed, they had no notice of the proceeding and were deprived of the opportunity to be heard. [27] Between September 2024 and January 2025, the defendants wrote letters to the Court on more than five occasions asking “who this was” being referred to in the Court material. In the letters, the defendants asked the following questions: Re the party “SCOTT MICHAEL ARNOLD AND NICOLE MAREE ARNOLD” named in the notice: 1. Is the party a fiction of law? 2. Is the party prima facie a body corporate? 3. Does the District Court seek a representative of the body corporate? 4. Is the District Court using foreign-to-English language that I do not understand … 9 This matter concerned arbitral proceedings which are different to Court proceedings, but the general principle articulated applies to both types of proceedings. -- 7 of 11 -- 7 Until such time as these questions are answered, I believe an estoppel in law is operative, please note when responding to this notice that it is an offence to make false or misleading statement, a maximum penalty Ten million dollars. [28] In each of the letters, the defendants demanded that the Court respond by a certain date and asserted they would claim an estoppel against the Court taking any action. The Court did not respond to the defendants’ letters. [29] The plaintiff submitted that: (a) the defendants had been properly served; and (b) there was no basis for the default judgment or the enforcement warrant to be set aside. Consideration [30] No defence or notice of any intention to defend has ever been filed by the defendants. Pursuant to rule 282, if service is proven, there is no irregularity in the making of the default judgment. Safeguards exist, such as in the nature of this application, to apply to have a judgment set aside, to ensure that in an appropriate case, orders can be overturned. [31] It is not in dispute that a foundational principle of our legal system is the right to be heard and to have a fair hearing. This is captured in section 31 of the Human Rights Act 2019 (Qld).10 [32] The power vested in section 51 of the Constitution is reflected in section 2 of the Constitution Act 1867 (Qld) which provides for the Legislative Assembly’s law- making power in Queensland. [33] In reliance on the power in section 51 of the Constitution, the Commonwealth Parliament enacted the Service and Execution of Process Act 1901 (Cth). This Act has now been replaced by the Service and Execution of Process Act 1992 (Cth). This legislation relevantly provides that service of Court processes on an individual must 10 Which is based on Article 14 of the International Covenant on Civil and Political Rights which was ratified by Australia in 1980. See also Cameron v Cole (1944) 68 CLR 571; Grimshaw v Dunbar (1953) 1 QB 408; Taylor v Taylor (1979) 143 LLR 1. -- 8 of 11 -- 8 be affected in the same way as service of such an initiating process in the place of issue. [34] In Queensland, the rules of this Court, that is the UCPR, set out how the service of Court documents is to be affected to ensure that parties have a reasonable opportunity to be heard. [35] The question raised in this matter is, in essence, whether default judgment is inconsistent with a person’s right to be heard. The short answer is no. Persons wanting to be heard by a Court have a personal obligation to take the necessary steps to enable that to happen. That means, in a matter such as this one, notifying the Court and the other parties of an intention to defend the claim. One cannot avoid a proceeding by avoiding service. The rules of service and substituted service exist to ensure that a plaintiff is not left without a remedy for a substantiated claim, and to ensure the proper functioning of the Courts and their effective operation. The rules of service and default judgment are consistent with the overriding obligations of the parties and the court to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.11 [36] In Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, Brennan J explained:12 it is a truism that justice delayed is justice denied…within the limits of their resources, the courts so mould their procedures as to avoid unnecessary delays in the disposition of cases both criminal and civil. [37] Therefore, although it is a foundational premise that parties have a right to be heard, where proper Court procedure has not been followed (through the failure to file an appearance or attend Court at the date and time notified in properly served documents), without valid excuse, that party cannot be said to have been denied natural justice. [38] The facts outlined above clearly demonstrate that the first and second defendant were served in accordance with the orders of this Court and the UCPR. There is no requirement in the UCPR for names to be written in lowercase or a combination of 11 UCPR r 5. 12 At [20]. -- 9 of 11 -- 9 upper and lowercase letters. The Court finds that the submission made on this point and the reference to English grammar capitalisation rules was merely an attempt to avoid the consequences of the enforcement of the Judgment. Grammar rules are of general application. Different styles and norms apply in different situations. Even if a sentence or name is written in a “non-conforming” format, it is disingenuous of the defendants to submit they did not recognise their own names because they had been capitalised. Arguments about the form/formatting of a name giving rise to an argument of incorrect identity (sometimes referred to as the strawman duality) have been rejected by this Court on a number of occasions.13 [39] The defendants blame the Court for not responding to their letters to inform them that these documents were meant for them. It is not the role of the Court to answer such demands. I note the letters sent to the Court are evidence of the defendants having been effectively served with the Court documents. [40] I also note that the Australian Government has published a Style Manual which provides style guidance for different types of legal material so that legal documents are prepared consistently. It provides with respect to case names and titles of cases:14 The people or organisations named in the case are known as ‘parties’. Capitalise the names of the parties but use a lower case ‘v’ between the party names. (emphasis added) [41] It is somewhat ironic that the capitalisation of the defendants’ names is meant to draw attention to the names to make them easier to recognise. [42] The defendants were given a reasonable opportunity to appear and be heard when they were properly served with the claim and statement of claim.15 [43] There was no other evidence before the Court addressing any substantive reason for why the Judgment and enforcement warrant should be set aside. 13 NNRM v The Commissioner of Police & Anor [2024] QDC 64; Wilson v Queensland Police Service [2024] QDC 225. 14 Australian Government, ‘Style Manual’, Cases and legal authorities (Web Page) <https://www.stylemanual.gov.au/referencing-and-attribution/legal-material/cases-and-legal-authorities>. 15 W R Carpenter Australia Ltd v Ogle [1997] QCA 383; [1999] 2 Qd R 327. -- 10 of 11 -- 10 [44] There was nothing identified as irregular, in particular by a defect of service, in the entering of the default judgment16 [45] Since the date of the Judgment the plaintiff has received no payments in reduction of the Judgment debt from the defendants, and the first defendant is still in possession of the Property. Conclusion [46] The application to set aside the default judgment and enforcement warrant is dismissed. [47] I will hear from the parties as to costs. The parties are directed, within seven days, to file any material and written submissions (limited to two pages) as to appropriate orders. 16 Embrey v Smart [2013] QSC 241 [41]. -- 11 of 11 --