Commonwealth Bank of Australia v Liu & Anor [2022] QSC 137

SUPREME COURT OF QUEENSLAND CITATION: Commonwealth Bank of Australia v Liu & Anor [2022] QSC 137 PARTIES: COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 (Plaintiff) v LINNA LIU (First Defendant) and NIAN CHEN (Second Defendant) FILE NO/S: BD 13087 of 2021 DIVISION: Trial PROCEEDING: On the papers ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 5 July 2022 DELIVERED AT: Brisbane HEARING DATE: Determined without an oral hearing JUDGE: Bradley J ORDER: The order of the Court is that: 1. Pursuant to r 116, the way of serving the claim and statement of claim filed 5 November 2021, and this Order, set out in paragraphs 2 and 3 of this Order is substituted for the way otherwise required under chapter 4 of the Uniform Civil Procedure Rules 1999 (Qld) . 2. Pursuant to r 116(2), a sealed copy of the claim, the statement of claim, and this Order may be brought to the attention of the first defendant by: (a) sending them by email to the email address of the first defendant, identified in the affidavit of Samuel Frederick O’Connell filed 27 June 2022 (“Mr O’Connell’s affidavit”); (b) sending with those scanned copies a letter explaining the terms of substituted service; and (c) sending a text message to the telephone number for the first defendant mentioned in Mr -- 1 of 4 -- 2 O’Connell’s affidavit, advising that the documents have been served by email, noting the email address to which they have been sent, and the time and date the email was sent. 3. A sealed copy of the claim, the statement of claim, and this order may be brought to the attention of the second defendant by: (a) sending them by email to the email address of the second defendant, identified in Mr O’Connell’s affidavit; (b) sending with those scanned copies a letter explaining the terms of substituted service; and (c) sending a text message to the telephone number for the second defendant mentioned in Mr O’Connell’s affidavit, advising that the documents have been served by email, noting the email address to which they have been sent, and the time and date the email was sent. 4. Pursuant to r 116(3), for all purposes the claim, the statement of claim and this Order are taken to have been served: (a) on the first defendant four days after the last of the steps in paragraph 2 of this Order has been completed; and (b) on the second defendant four days after the last of the steps in paragraph 3 of this Order has been completed. 5. The plaintiff’s costs of and incidental to this application are the plaintiff’s costs in the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUED AND INFORMAL SERVICE – whether it is impractical for the plaintiff to serve the originating process in the way required by Chapter 4 of the Uniform Civil Procedure Rules 1999 – whether it is appropriate to make orders dispensing with the requirements for personal service in rule 105 of the Uniform Civil Procedure Rules 1999 Uniform Civil Procedure Rules 1999, r 105, r 116 SOLICITORS: HWL Ebsworth Lawyers for the Plaintiff -- 2 of 4 -- [1] This is a decision on the papers on an application by the plaintiff for orders for substituted service on the two defendants. Evidence before the court [2] The plaintiff commenced this proceeding on 5 November 2021 by filing a claim and statement of claim. It seeks orders to recover possession of land in Melbourne from the first defendant and an order to recover payment of a debt in the amount of $304,779.01 from the first and second defendants, together with interest on that sum at the rate of 4.43% per annum, and costs. [3] The last address of the defendants known to the plaintiff is a unit at Park Ridge in Queensland. The plaintiff engaged an agent to serve the claim and statement of claim on the defendants at that address. The agent was unable to serve the documents as the defendants no longer live there. Information gathered by the agent is to the effect that the defendants have not lived at that address for some time. The unit is presently occupied by another person. Before him, it was occupied by others, and before them by one of the defendants. [4] The plaintiff sought information from the body corporate for the building in which the secured property is located in Melbourne. The body corporate manager was able to provide telephone numbers and email addresses for the defendants. [5] The plaintiff communicated with the defendants using the email addresses. In those communications, the defendants requested that the Court documents be sent to one of the two email addresses, being that for the second defendants. The plaintiff also communicated with the first defendant by one of the telephone numbers. The first defendant informed the plaintiff that it should send the Court documents for both defendants to the second defendant’s email address. [6] The plaintiff has undertaken searches of the electoral role and real property records. These have yielded no other information about the defendants. [7] The telephone numbers for the defendants, including the number on which the plaintiff’s officer spoke with the first defendant, are numbers with a country code for the People’s Republic of China and a prefix indicating that they are mobile numbers. [8] It follows that the whereabouts of each of the defendants is not known. They may be in Queensland or not in Queensland. They may have been outside Queensland when the proceeding started. Conclusions [9] In the circumstances, I am satisfied that it is impracticable for the plaintiff to serve the originating process in the way required by Chapter 4 of the Uniform Civil Procedure Rules 1999. It follows that the Court may make an order substituting another way of serving the document pursuant to rule 116. [10] It is appropriate to make orders dispensing with the requirements for personal service in rule 105. Orders to be made -- 3 of 4 -- 4 [11] I propose to make an order pursuant to rule 116(2) that, in lieu of personal service, a sealed copy of the claim, the statement of claim, and a sealed copy of the order made today may be brought to the attention of the first defendant by emailing a scanned copy of those documents to the email address of the first defendant, identified in the affidavit of Samuel Frederick O’Connell filed 27 June 2022, together with a letter explaining the terms of substituted service, and sending a text message to the telephone number for the first defendant mentioned in Mr O’Connell’s affidavit advising the documents have been served by email to the specific email address, noting the time and date the email was sent. [12] I also propose to order pursuant to rule 116(2) that, in lieu of personal service, the documents may be brought to the attention of the second defendant by emailing scanned copies of them to the email address of the second defendant mentioned in Mr O’Connell’s affidavit, together with a letter explaining the terms of substituted service, and sending a text message to the telephone number for the second defendant mentioned in Mr O’Connell’s affidavit advising the documents have been served by email to the specific email address, noting the time and date the email was sent. [13] I will order that service of the documents will be deemed to have been effected four days after the steps specified have been served taken. The plaintiff’s costs of and incidental to this application should be the plaintiff’s costs in the proceeding. -- 4 of 4 --