Bunnings Group Limited v Lockwood & Anor [2014] QDC 94

DISTRICT COURT OF QUEENSLAND CITATION: Bunnings Group Limited v Lockwood & Anor [2014] QDC 94 PARTIES: BUNNINGS GROUP LIMITED (ACN 008 672 179) (applicant) v KUMARA STANLEY LOCKWOOD (first respondent) and RACHEL LOUISE JONES (second respondent) FILE NO/S: 524/2014 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 1 May 2014 DELIVERED AT: Brisbane HEARING DATE: 24 April 2014 (On the papers) JUDGE: Horneman-Wren SC DCJ ORDER: 1. The application filed on 10 April 2014 is dismissed. CATCHWORDS: PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where personal service was attempted at the respondents’ property – where it is was not established whether the respondents continue to reside at their property – where searches indicated further locations that the respondents would likely be contactable – where no attempts of personal service were made at these further locations – whether personal service is impracticable Uniform Civil Procedure Rules 1999 (Qld), r 105, r 116(1), Kendall v Sweeney [2002] QSC 404 Miscamble v Phillips and Hoeflich (No. 2) [1936] St R Qd 272 -- 1 of 6 -- 2 SOLICITORS: Bennett & Philp Lawyers for the applicant [1] By an originating application the applicant seeks the appointment of a statutory trustee for the sale of land and improvements described as Lot 393 on RP136433 County of Ward Parish of Tamborine, being all that land contained in Title Reference 15010098, with the address of 5 Makalu Court, Eagle Heights (the property). On 17 September 2013 the Supreme Court of Queensland gave judgment for the applicant against the first respondent in the sum of $30,947.30. The court also declared that pursuant to a guarantee between the applicant and the first respondent, the applicant held an equitable interest as chargee in respect of the first respondent’s interest in the property, with the amount secured by the equitable charge being $30,947.30. [2] The property is owned by the first and second respondents as joint tenants. [3] The applicant has been unable to serve the originating application and affidavit in support personally upon either of the respondents as required by r 105 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). It seeks an order for substituted service pursuant to r 116 of the UCPR. [4] Before the court can order substituted service it must first be established that personal service is impracticable.1 If so satisfied, the court must then be further satisfied that service by the substituted means is likely to bring the proceeding to the knowledge of the other party.2 [5] The applicant has failed to establish impracticability. 1 Rule 116(1) UCPR; Kendall v Sweeney [2002] QSC 404 at [15]. -- 2 of 6 -- 3 [6] An affidavit of Yvonne Maria O’Byrne filed in support of the application exhibits reports from commercial agents engaged by the plaintiff to attempt personal service upon the respondents. In a report dated 27 February 2014 the agents report having attended at the address of 5 Makalu Court, Eagle Heights on 21 February 2014. They were not able to locate anyone at home. The property was reported as having an electric gate with no bell or intercom and dogs in the yard. There was a “beware of the dog” sign. [7] An agent again attended at the property the following day. On that occasion, two vehicles were found parked at the address. A description of each vehicle and its registration number is provided in the report. One of the vehicles had its doors wide open. The gate to the property was closed and no response was received to the agent’s persistent beeping of his horn and yelling out. [8] A neighbour was spoken to. That person stated that the respondents had left the address approximately 12 months earlier, and that the property was now occupied by tenants. The neighbour had no knowledge of the respondents’ whereabouts. [9] In a further report of 5 March 2014 the agents refer to their inability to serve the documents on the respondents at the property. They do not, however, refer to any further attempts to do so after those made on 21 and 22 February. [10] The report states that a current electoral role search had a listing for a person with the first respondent’s name at 79 Simmentil Drive, Tamborine. 2 Miscamble v Phillips and Hoeflich (No. 2) [1936] St R Qd 272 at 274. -- 3 of 6 -- 4 [11] A property search listed persons with the names of the respondents as owning a property at 5 Makalu Court, Tamborine Mountain. The postcode for Tamborine Mountain is said to be 4272, whereas that for Eagle Heights is 4271. The material does not explain if it is thought that this is a different address. [12] In a further report dated 7 March 2014 the agents identify that a search of occupational licensing records had indicated that a Rachel Louise Lockwood is a registered nurse whose contact address is listed as Eagle Heights Queensland 4271. It was said that “a search of the subject’s credit file revealed that Ms Lockwood’s employment was listed as ‘Healthscope Allamanda’”. Discreet telephone enquiries of the Allamanda Private Hospital in Southport were reported as having obtained confirmation that “Rachel Lockwood” was currently employed in the intensive care unit of the hospital, and that she worked night duty. Indeed, it was established that she would be working a night duty shift on 12 March 2014 between 7.30pm and 7.30am. [13] The 7 March report also said that a search of the Intergraded Public Number Data Base had identified a telephone listing for the 79 Simmentil Drive, Tamborine address in the name of “P Marcessen”. The agents had attempted telephoning that number but all calls had gone unanswered. Of this the agent said: “Therefore, we have been unable to confirm or negate whether the subjects are currently residing at this address, or whether the current occupants hold any knowledge pertaining to the subjects’ current whereabouts.” [14] The order proposed by the applicant would have personal service dispensed with and substituted by the documents being sent by prepaid post to the first respondent at: the 5 Makalu Court, Eagle Heights address; the 79 Simmentil Drive, Tamborine -- 4 of 6 -- 5 address; and to Post Office Box 93 Canungra. In respect of the second respondent, the proposed order would have service affected by posting the documents to: the Eagle Heights address; the Post Office Box; and care of the intensive care unit of the Allamanda Private Hospital marked “private and confidential”. [15] The applicant submits that: “… on the basis of the efforts that have been made to personally serve the first and second respondents, who are registered owners of the property the subject of the applicant’s application … it is impractical to personally serve the first and second respondents in accordance with the methods prescribed by the UCPR and further, that it would be futile to make any further attempts at service of the first and second respondents in this matter.” (emphasis added). [16] That submission should be rejected. [17] In respect of 5 Makalu Court, Eagle Heights, there is no evidence to suggest that any attempt has been made to establish through motor vehicle searches whether either respondent is the registered owner of either or both of the two vehicles seen outside the property on 22 February 2014. If they are, that might suggest that, contrary to the information obtained from the neighbour, personal service on the respondents may be practicable at that address. One may pause to observe that if the neighbour is correct, and the respondents left the property 12 months ago, it is difficult to see how the court would be satisfied on the current state of the evidence (even if it is accepted that personal service was impracticable) that posting the documents to that address would be likely to bring them to the attention of the respondents. It is simply not to the point that service of the Supreme Court proceeding was ordered to be effected in that way. On the evidence in this matter it may well have been the case that the respondents were still in residence at that address at the time at which the order was made; but I do not know what evidence -- 5 of 6 -- 6 was before Boddice J when he made the earlier order or his reasons for making it. Only his order is before me. [18] In respect of the Simmentil Drive, Tamborine address, the only attempts at contact at that address have been by telephone. No attempt has been made to effect service at that address. Indeed, the agents simply say that they are unable to confirm or negate whether the respondents reside there. Again one may pause to observe (again assuming impracticability) that without such confirmation, and given that there is a telephone listing for the premises apparently held in another name, it is difficult to see how the court could be satisfied that posting the documents to that address would bring them to the attention of the respondents. [19] In respect of the second respondent, no attempt has been made to serve her at her workplace which is now thought to be known. Indeed, it seems that the agents have even been able to establish when she is likely to be there. The potential to serve her there was even identified, so it seems, by the agents in their report of 7 March 2014 where they say: “Unless otherwise instructed an Advance agent attend (sic) at Allamanda Private Hospital in the intensive care unit at 21 Spendelove Street, Southport, Queensland 2015 to conduct further enquiries and attempt. (sic)” [20] The applicant has failed to establish the impracticability of personal service. Indeed, its submissions appear to proceed on the basis of an incorrect test of impracticality, rather than impracticability. [21] The application for substituted service must be refused. -- 6 of 6 --