ANZ Banking Group Ltd v Austin & Anor [2014] QSC 222

SUPREME COURT OF QUEENSLAND CITATION: ANZ Banking Group Ltd v Austin & Anor [2014] QSC 222 PARTIES: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522 (plaintiff/applicant) v DENISE ANNE AUSTIN AND RICKY JAMES PATTEN (defendants/respondents) FILE NO: BS4698/14 DIVISION: Trial PROCEEDING: Application on the papers DELIVERED ON: 10 September 2014 DELIVERED AT: Brisbane HEARING DATE: 9 September 2014 JUDGE: Jackson J ORDERS: The order of the Court is that: 1. Personal service of the claim and statement of claim in proceeding number BS4698/14 on the defendants be dispensed with. 2. Service of the claim and statement of claim, together with a copy of this order, upon the defendants Denise Anne Austin and Ricky James Patten be effected by: (a) posting copies thereof by ordinary post addressed to the defendants at 7 Devon Street, Gulliver, Queensland; 9 Dacosta Court, Vincent, Queensland; and 5 O’Kane Court, Vincent, Queensland; and (b) personally leaving copies thereof at 7 Devon Street, Gulliver, Queensland. 3. Such service be deemed to be effected upon the defendants five (5) business days after the later of the date of posting or date of leaving the documents in accordance with paragraph 2 of this order. 4. The costs of the application be the plaintiff’s costs in the proceeding. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SERVICE – SUBSTITUTED SERVICE - where the -- 1 of 3 -- 2 plaintiff has made several attempts to personally serve the defendants at their last known and apparent residential address – where the plaintiffs attempted to make contact with the defendants by calling their last known telephone numbers – where family member home at time of attendance but access to premises barred by high fence and aggressive dog – where attempts to arrange meeting not responded to by defendants - where defendants proposed substituted service by post to three of the defendants known properties and by personal delivery to their last known and apparent residential address – whether substituted service should be ordered Commonwealth Bank of Australia v Diplock [2010] QSC 146, cited COUNSEL: No appearance – application on the papers SOLICITORS: Thynne & Macartney for the plaintiff [1] Jackson J: On 20 May 2014, the plaintiff filed the claim in this proceeding (S4698/14). Against the first defendant, the claim is for the payment of two debts and for possession of two parcels of land securing the debts. Against both defendants, there is a further claim for payment of a third debt and to recover possession of a third parcel of land securing that debt. [2] The last address of the defendants known to the plaintiff is 7 Devon Street, Queensland. The plaintiff also has telephone numbers for each of the defendants. The male defendant’s mobile telephone number appears no longer to be connected. [3] The plaintiff’s solicitors engaged an agent to personally serve the defendants with the claim. A representative of the agent attended 7 Devon St on 7 June 2014 at 8:29 am, on 25 June 2014 at 5:50 pm and on 29 July 2014 at 6:45 pm. [4] The representative was unable to enter the property on any occasion. There is a dog in the yard described as vicious or aggressive. The agent called out and knocked on the gate but received no response on any occasion. The dog became agitated. [5] On two of the occasions, the premises appeared to be occupied, that is, someone appeared to be at home. On one of them, the agent called the female defendant’s landline phone number and spoke to a person who identified herself as the female defendant’s daughter. [6] Attempts by the agent to engage the defendants to arrange a meeting, by leaving cards at 7 Devon St, or by telephoning the defendants, have been unsuccessful. [7] Although those efforts of service have not been overly extensive, the inference is available that the defendants are attempting to evade service. [8] Personal service of the claim as an originating proceeding is required under the Uniform Civil Procedure Rules 1999, r 105(1). However, the requirement for personal service may be varied by the Court making an order substituting another way of serving the document if, for any reason, it is impracticable to serve a document in the way required under, inter alia, r 105(1): UCPR, r 116. -- 2 of 3 -- 3 [9] In the present case, the plaintiff’s attempts to serve the claim under UCPR r 105(1) have proved to be unsuccessful. The plaintiff has conducted internet searches for other available addresses or means to serve the defendants. None has emerged. [10] As Fryberg J said in making similar orders in a similar case: Commonwealth Bank of Australia v Diplock:1 “The objective of substituted service is to bring the proceedings to the knowledge of the person in question or of any person representing his interest”.2 [11] I infer that service on the defendants by personal service is impracticable. [12] The means of service proposed by the plaintiff, by way of ordinary post, should deliver copies of both the claim and statement of claim and the order varying the requirement of personal service to the defendants. The plaintiff’s proposal to post the documents to all three of the addresses of the secured properties is a further way of attempting to ensure that they are brought to the attention of the defendants. The further step of personally leaving a copy of the documents will guard against any possible failure of the post. [13] Accordingly, an order in the terms set out above is appropriate. 1 [2010] QSC 146. 2 Ibid, [7]. -- 3 of 3 --