Australia and New Zealand Banking Group Limited v Woodman [2010] QDC 440

DISTRICT COURT OF QUEENSLAND CITATION: Australia and New Zealand Banking Group Limited v Woodman [2010] QDC 440 PARTIES: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (Applicant) AND GREGORY HERBERT WOODMAN (Respondent) FILE NO/S: 2925/10 DIVISION: Civil PROCEEDING: Applications of the Papers ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 16 November 2010 DELIVERED AT: Brisbane HEARING DATE: 12 November 2010 JUDGE: Reid DCJ ORDER: 1) Personal service of Claim and Statement of Claim in this matter on the Respondent is dispensed with; 2) Pursuant to rule 166 of the Uniform Civil Procedure Rules 1999 (Qld) the Claim and Statement of Claim are served on the Respondent by sending a copy of the Claim and Statement of Claim by prepaid ordinary post addressed to the Respondent at: a) C/- Mr Neil Woodman & Mrs Joanne Woodman, 21 Old Reward Road, Rubyvale QLD 4702; and b) PO Box 76, Rubyvale QLD 4702; 3) Service be deemed to be effected 4 business days after the last day on which the Applicant serves the Respondent in accordance with each of the above methods; and 4) That costs be the Applicant’s costs in the cause. SOLICITORS: Gadens Lawyers for the Applicant [1] This is an application for orders that: -- 1 of 6 -- 2 (i) Personal service of Claim and Statement of Claim in this matter on the Respondent be dispensed with. (ii) Pursuant to rule 166 of the Uniform Civil Procedure Rules 1999 (Qld) the Claim and Statement of Claim be served on the Respondent by sending a copy of the Claim and Statement of Claim by prepaid ordinary post addressed to the Respondent at: a) C/- Mr Neil Woodman & Mrs Joanne Woodman, 21 Old Reward Road, Rubyvale QLD 4702; and b) PO Box 76, Rubyvale QLD 4702; (iii) Service be deemed to be effected 4 business days after the last day on which the Applicant serves the Respondent in accordance with each of the above methods; and (iv) The Respondent pay the Applicant’s costs of and incidental to this application. [2] The Applicant’s solicitor’s filed the Claim and Statement of Claim on 12 October 2010. The Applicant claims from the Respondent the recovery of possession of land at 58 Goanna Flats Road, Rubyvale in the State of Queensland and the sum of $152,386.17 plus interest of 7.41% pa from 12 October 2010. [3] The Applicant has a mortgage over the property and the Respondent is said to have defaulted on repayments with arrears as at 26 July 2010 being $6,639.59 -- 2 of 6 -- 3 [4] The affidavit of Barbara Sim, sworn 9 November 2010, indicates the Applicant’s solicitor’s engaged a firm of investigators, process servers and licensed commercial agents to personally deliver documents to the Respondent. [5] That affidavit states that on 8 September 2010, the agent visited 58 Goanna Flats Road, Rubyvale, and noticed the house seemed well kept. The agent spoke to a neighbour who “volunteered to provide the phone number” for the Respondent (see exhibit BAS-1 of the affidavit). It seems that this number however, was the Respondent’s mother’s phone number as the affidavit then says that the agent “readily obtained the phone number and then proceeded to call Mrs. Woodman”. [6] Mrs. Woodman told the agent that her son, the Respondent, no longer lived at 58 Goanna Flats Road and was now living in Emerald, but she refused to give an exact address or contact number for the Respondent. [7] At the request of the Applicant’s solicitor’s the agent then performed an electoral role search (exhibit BAS-2 of the affidavit) which indicate the Respondent was living at 1/1 Baker Street, Emerald. The agent then visited the Baker Street address on 27 October 2010, but no one was home. The agent spoke with a male at Unit 2 who said a young couple from New South Wales had recently moved into the apartment. The agent tracked down the rental agency in charge of the Unit and they confirmed that the Respondent was a former tenant of the unit. The rental agency refused to provide contact information for the Respondent but told the agent they would give the Respondent a message to call the agent. [8] As at 9 November 2010, the Respondent had not contacted the agent nor the Applicant’s solicitors and the Claim and Statement of Claim remain unserved. -- 3 of 6 -- 4 [9] The Applicant’s solicitor’s performed searches which Ms Sim said identified the Respondent’s parents as Neil Gregory Woodman and Joanne Nuell, living at 21 Old Reward Road, Rubyvale (see exhibit BAS-4). This address is the same as that on the driver’s licence of the Respondent which was also part of exhibit BAS-4 was effective from 16 May 2006 to 15 May 2009. In my view this supports an inference that they are related. [10] A property search from 5 November 2010 also indicates the Mr Woodman and Ms Nuell own the Old Reward Road address. [11] Additionally, a property search on the Goanna Flats Road address indicates the Respondent’s postal address is PO Box 76, Rubyvale, Queensland. [12] Pursuant to r 105(1) of the UCPR, a Claim and Statement of Claim must be served personally. However r 116 provides: “(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.” [13] Kendell v Sweeney [2002] QSC 404 supports the view that if it is impracticable to serve the documents personally and if the proposed method of service is likely to bring the proceedings to the knowledge of the Respondent (see Miscamble v Phillips and Howflich (No. 2) [1936] St R Qd 272) then personal service can be dispensed with. -- 4 of 6 -- 5 [14] The Applicant submits they have exhausted all efforts to personally service the Respondent with the Claim and Statement of Claim. The Applicant is unaware of any address where the Respondent resides and relies on the statements made by the Respondent’s mother referred to in [6] hereof that she knows where he lives. [15] The Applicant further submits that it’s likely that the Claim and Statement of Claim would be brought to the attention of the Respondent if copies are posted to his parent’s Rubyvale address and the PO Box listed as the postal address for the Goanna Flats Road address. [16] From the facts placed before me, I agree that personal service is both impracticable and will be likely to be brought to the attention of the Respondent if service is affected in the proposed way. For that reason, I make the following orders: (i) Personal service of Claim and Statement of Claim in this matter on the Respondent is dispensed with. (ii) Pursuant to rule 166 of the Uniform Civil Procedure Rules 1999 (Qld) the Claim and Statement of Claim are served on the Respondent by sending a copy of the Claim and Statement of Claim by prepaid ordinary post addressed to the Respondent at: a) C/- Mr Neil Woodman & Mrs Joanne Woodman at 21 Old Reward Road, Rubyvale QLD 4702; and b) PO Box 76, Rubyvale QLD 4702; (iii) Service be deemed to be effected 4 business days after the last day on which the Applicant serves the Respondent in accordance with each of the above methods; and -- 5 of 6 -- 6 [17] With regards to costs, the Applicant seeks costs of and incidental to this application. No schedule of costs has been provided by the Applicant. [18] There is no evidence in the Affidavit that the Respondent is actively evading service. Instead it is because his mother and former his rental agency have refused to provide his current address that the Applicant is unable to serve him personally. It is unknown whether either of these people were told of these proceedings and in that case in my view it is unreasonable to infer the Respondent has been in any way deceptive. In such circumstances, I order that costs be the Applicant’s costs in the cause. -- 6 of 6 --