Commonwealth Bank of Australia v Li [2023] QSC 224

SUPREME COURT OF QUEENSLAND CITATION: Commonwealth Bank of Australia v Li [2023] QSC 224 PARTIES: COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 (plaintiff) v QIANQIAN LI (defendant) FILE NO: BS No 4668 of 2023 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 10 October 2023 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Davis J ORDERS: 1. That personal service of the claim and statement of claim upon the defendant as required by r 105 of the Uniform Civil Procedure Rules 1999 (UCPR) be dispensed with. 2. Pursuant to r 116 of the UCPR, the plaintiff effect service of the claim and statement of claim on the defendant by: (a) serving a copy of the claim and statement of claim together with a copy of the Court’s order pursuant to this application (the documents) at 60 Elderbury Place, Stretton Qld 4116 (the property) by delivering the documents to the male person who on 15 July 2023 purported to be the defendant’s husband; (b) by posting, via pre-paid post, the documents to the property; (c) notifying the defendant by SMS to 0450 089 803 that the documents have been posted and delivered to the defendant at the property; and (d) sending a copy of the claim and statement of claim to the defendant by SMS to 0450 089 803. -- 1 of 6 -- 2 3. That service of the claim and statement of claim on the defendant be deemed to have occurred five (5) business days after the date that all of the steps in Order 2 are completed. 4. The plaintiff’s costs of this application be the plaintiff’s costs in the cause. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE – SUBSTITUTED AND INFORMAL SERVICE – where the plaintiff loaned money to the defendant – where the loan was secured by mortgage over a house at Stretton – where the defendant fell into default – where the plaintiff issued a claim and statement of claim – where the proceedings claimed money owing and recovery of possession of the property – where service was attempted upon the defendant – where service was not effected – where contact with the defendant was attempted – where messages were left – where there has been no response – whether an order for substituted service ought to be made Uniform Civil Procedure Rules 1999, r 105, r 116, r 489 Re Gardner (dec’d) [2023] QSC 142 SOLICITORS: Dentons Australia Limited for the plaintiff/applicant [1] This is an application for an order allowing substituted service of a claim and statement of claim. Background [2] The plaintiff is a bank. [3] The defendant is the bank’s customer. [4] The plaintiff alleges that in 2015 it advanced money to the defendant pursuant to facility agreements secured by a mortgage over a property in Stretton being 60 Elderbury Place (the property). [5] The defendant resides at the property. [6] On 18 April 2023, a claim and statement of claim was filed by the plaintiff alleging default by the defendant under the facility agreements and seeking judgment for a sum in excess of $852,000 and recovery of possession of the land. [7] Andrew Price is a process server who attempted service of the claim and statement of claim. Mr Price: 1. attended the property on 9 July 2023 but couldn’t raise any occupants; 2. left a calling card requesting the defendant to call him; -- 2 of 6 -- 3 3. attended the property again on 15 July 2023 and spoke with a male person at the property who identified himself as the defendant’s spouse. However, that person refused to provide his name, said that the defendant was overseas and would be overseas1 for a few months but he could accept the claim and statement of claim. [8] Mr Price deposes that he has not received any contact from the defendant. [9] The plaintiff holds a mobile telephone number for the defendant. This is 0450 089 803. The plaintiff’s solicitors have attempted telephoning that number but there was no answer. The voicemail that was left has not elicited a response. [10] On 19 September 2023, the solicitors sent an SMS message to the number in these terms: “Dear Ms Li This is Max Fodor from Dentons Australia. We act on behalf of Commonwealth Bank of Australia with respect to the property situated at 60 Elderbury Place, Stratton2 Qld 4116. We are continuing efforts to personally serve you with documents on behalf of Commonwealth Bank of Australia. Could you please advise when you may be present at 60 Elderbury Place so that we might effect service? Alternatively could you please contact Max Fodor at (07) 3074 1193 or alternatively at [email protected].” [11] No response has been received from the defendant. [12] The plaintiff seeks to effect service in this way: “(a) serving a copy of the Claim and Statement of Claim together with a copy of the Court’s order pursuant to this application (the Documents) on the Defendant’s husband to bring to the attention of the Defendant at 60 Elderbury Place, Stretton QLD 4116 (the Property); (b) by posting, via pre-post, the Documents to the Property; (c) notifying the Defendant by SMS to 0450 089 803 that the Documents have been posted and delivered to the Defendant at the Property; and (d) sending a copy of the Claim and Statement of Claim to the Defendant by SMS to 0402 343 170.” [13] The telephone number 0402 343 170 is a mystery. It appears in the application and the draft order. It does not appear in any affidavit filed in the proceeding. I have assumed that the inclusion of the number in the application and the draft order is an error. The number to which any SMS should be sent is 0450 089 803. 1 It does not matter that the defendant may be beyond the jurisdiction; r 116(4). 2 Should be Stretton. -- 3 of 6 -- 4 Consideration [14] By r 105 of the Uniform Civil Procedure Rules 1999 (UCPR), personal service is required of the claim and statement of claim. [15] Rule 116 of the UCPR provides for orders for substituted service. Rule 116 provides: “116 Substituted service (1) If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document. (2) The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served. (3) The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time. (4) The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.” [16] Rule 489 of the UCPR provides for an application without oral hearing. It is in terms: “489 Proposal for decision without oral hearing (1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing. (2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless— (a) under rule 491, the court considers it inappropriate to do so; or (b) under rule 494, the respondent requires an oral hearing; or (c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or (d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.” [17] The structure of r 489 is that: 1. jurisdiction to proceed without oral hearing is granted; 2. the jurisdiction is enlivened by a proposal by an applicant; -- 4 of 6 -- 5 3. the proposal must be accepted in the absence of the features in r 489(2)(a)-(d).3 [18] Here, the plaintiff has proposed that the application be decided without oral hearing. Subrules 489(2)(c) and (d) do not apply. The defendant has of course not been served and so r 489(2)(b) does not arise. I can see no reason why it is inappropriate to proceed without oral hearing.4 [19] I will therefore consider the application without oral hearing. [20] There are two preconditions to the making of an order for substituted service, namely: 1. service cannot be effected personally; 2. the method of substituted service which is proposed will, in all probability, bring knowledge of the process to the defendant. [21] The first condition has been fulfilled. The defendant has been unable to be served and the inference which should be drawn from the fact that she has not responded to messages is that she is evading service. [22] In my view, an order for substituted service ought be made but not precisely in the terms sought. What is proposed is serving the claim and statement of claim and a copy of the substituted service order upon “the Defendant’s husband”. That begs the question as to whether the adult male at the house is in fact the defendant’s husband. It is better to provide for the service of the person who purported to be the defendant’s husband. That, and the other measures, should ensure the proceeding will come to the notice of the defendant. Orders [23] It is ordered: 1. That personal service of the claim and statement of claim upon the defendant as required by r 105 of the Uniform Civil Procedure Rules 1999 (UCPR) be dispensed with. 2. Pursuant to r 116 of the UCPR, the plaintiff effect service of the claim and statement of claim on the defendant by: (a) serving a copy of the claim and statement of claim together with a copy of the Court’s order pursuant to this application (the documents) at 60 Elderbury Place, Stretton Qld 4116 (the property) by delivering the documents to the male person who on 15 July 2023 purported to be the defendant’s husband; (b) by posting, via pre-paid post, the documents to the property; (c) notifying the defendant by SMS to 0450 089 803 that the documents have been posted and delivered to the defendant at the property; and (d) sending a copy of the claim and statement of claim to the defendant by SMS to 0450 089 803. 3 Re Gardner (dec’d) [2023] QSC 142 at [22]. 4 Rule 489(2)(a). -- 5 of 6 -- 6 3. That service of the claim and statement of claim on the defendant be deemed to have occurred five (5) business days after the date that the last of all of the steps in Order 2 are completed. 4. The plaintiff’s costs of this application be the plaintiff’s costs in the cause. -- 6 of 6 --