ANZ Banking Group Ltd v Smalley & Anor [2012] QDC 80

1-1 [2012] QDC 80 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 473 of 2011 AUSTRALIAN AND NEW ZEALAND BANK GROUP LIMITED Plaintiff and CHRISTIAN GEOFFREY SMALLEY & ANOR Defendants BRISBANE ..DATE 16/04/2012 ORDER CATCHWORDS Uniform Civil Procedure Rules 1999, r 116, r 693 Application "on the papers" for substituted service of claim and statement of claim for moneys owing under a mortgage and possession of the premises - premises on Russell Island also defendant's electoral roll address but he is there only intermittently - history of attempts at service justifies finding personal service impracticable - text message to defendant's mobile phone number advising making of the order required to be sent - costs made "costs in the cause" - indemnity costs refused -- 1 of 5 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The court has determined an application "on the papers" in which the plaintiff/applicant seeks that personal service of the claim and statement of claim on the "defendant" be dispensed with and that pursuant to rule 116 substituted service be effected by ordinary prepaid post to an address on Russell Island. My Associate has communicated with the plaintiff's solicitors and confirmed that it's only service on the first defendant which is to be dispensed with. My perusal of the file, while that exercise was undertaken, indicates that the second defendant has been personally served with the claim and statement of claim at an address in Eagle Heights on the 22nd November 2011. The defendants, according to the documents to be served, borrowed a sum in excess of $120,000 from the plaintiff and offered to put up the Russell Island property as security. The statement of claim alleges that as 10th October 2011, which is some 5 years after the date of the loan agreement and mortgage (9 October 2006), arrears under the mortgage were $4,850.79. It's alleged that the plaintiff was given the relevant notices to trigger its rights as mortgagee including the right to possession of the property, which is sought to be enforced in one part of the claim, the balance being for a money sum which as at the date of commencement of the proceeding was $123,616.40 and interest. -- 2 of 5 -- 1-3 ORDER 1 10 20 30 40 50 60 The first defendant's address, as confirmed by his electoral roll listing, is 50 Rossi Avenue, Russell Island, being the address of the mortgaged premises. He doesn't reside there. Process servers have located another occupant who advises knowing the first defendant and that he regularly attends at 50 Rossi Avenue, Russell Island. His mother resides at a different address on Russell Island. She has advised process servers that she is the first defendant's mother, that she is not in contact with him and that, according to her last knowledge of him, he was residing at 50 Rossi Avenue. I ought to say that the advice from the occupant of the property is that the first defendant doesn't reside there but does stay there from time to time. A neighbour has confirmed that. The island location, which means that process servers are required to use a ferry and spend a considerable amount of time attending at the premises and without much assurance of locating the first defendant there, is prayed in aid of the application and the court's finding that it's "impracticable" to serve personally. One would expect, assuming what the statement of claim says of the circumstances, that the first defendant would be well aware of his default and could be anticipating a proceeding of the present kind. Assuming the process servers were indulged by persons they did contact to the extent of reporting to the -- 3 of 5 -- 1-4 ORDER 1 10 20 30 40 50 60 first defendant that a process server was involved, he may well know that a proceeding is on foot. It's a matter of speculation, of course, but he may have heard from the second defendant who has the same surname and has been served that the proceeding is on foot. In the circumstances, I think it's appropriate to provide the plaintiff with some relief. I've also thought it appropriate to improve on the draft order proffered in a number of ways. Firstly, by dispensing with personal service only in respect of the first defendant in paragraph one. Paragraph two authorises the ordinary arrangement of sending the claim and statement of claim, together with a copy of the court's order, by prepaid registered post to the address of the mortgaged premises. That has been expanded to require also "sending him a text message to mobile number 0411 834 995 notifying the making of this order and that copies of the material served are available from the applicant's solicitors. This is a way of making clear to the “first defendant” (as he is to be identified, rather than as "the Defendant") the implications of what has happened. I have added to the provision that service is effective 7 days after what's authorised to be done has been done "so that time begins to run then for the purpose of the plaintiff being entitled to proceed in default of notice of intention to defend being filed”. The plaintiff seeks costs of the application and on the -- 4 of 5 -- 1-5 ORDER 1 10 20 30 40 50 60 indemnity basis and that "the Defendant" pay them. Rule 693 is relied on as generating the necessity for the court to make some order about costs unless the plaintiff is to lose all opportunity of getting them. The costs provision in the order initialled is that the plaintiff's costs of and incidental to this application to be assessed, if not agreed, be its costs in the cause as against the first defendant. If the plaintiff ultimately succeeds then I think it's reasonable that it get its costs. I'm far from being persuaded this is an appropriate case for indemnity costs. There may be a provision in contractual documents justifying such a draconian and special order but, if so, it hasn't been placed before the court. There's nothing before the court to suggest that the first defendant in any mischievous way is avoiding being served. There will be an order as per the initialled draft. ----- -- 5 of 5 --