Commonwealth Bank of Australia v Goudge [2010] QDC 442

DISTRICT COURT OF QUEENSLAND CITATION: Commonwealth Bank of Australia v Goudge [2010] QDC 442 PARTIES: COMMONWEALTH BANK OF AUSTRALIA (Applicant) AND PETER JOHN GOUDGE (Respondent) FILE NO/S: BD1670/10 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) 1/73 Welsby Parade, Bongaree QLD 4507; and b) Unit 9, Ashburn Place, Gladesville NSW 2111; 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) The Applicant’s costs to be the applicant’s costs in the cause. SOLICITORS: Gadens Lawyers for the Applicant [1] This is an application for orders that: -- 1 of 5 -- 2 (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) 1/73 Welsby Parade, Bongaree QLD 4507; and b) Unit 9, Ashburn Place, Gladesville NSW 2111. (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 pays the Applicant’s costs of and incidental to this application. [2] The Applicant’s solicitor’s filed the Claim and Statement of Claim on 8 June 2010. The Applicant claims from the Respondent the recovery of possession of land at 1/73 Welsby Parade, Bongaree in the State of Queensland and the sum of $169,269.05 plus interest of 6.86% pa from 8 June 2010. [3] The Applicant has a mortgage over the property and the Respondent is said to have defaulted on repayments with arrears as at 20 January 2010 being $6,243.00. [4] The Applicant’s solicitors and their agents have attempted to contact and serve the Respondent numerous times. The affidavit of Barbara Sim, sworn 9 November -- 2 of 5 -- 3 2010, indicates that the Applicant’s solicitor’s engaged a firm of investigators, process servers and licensed commercial agents to affect service. [5] The affidavit indicates that service was attempted at the property subject to the mortgage, 1/73 Welsby Parade, Bongaree QLD 4507 (the Welsby address) on 15, 22 and 26 June 2010 but no one was at the premises. On 15 June 2010 the agents asked the neighbours in Unit 2 whether the Respondent still lived at that address and they were told he did not. [6] The affidavit of Lauren Rose Moroney sworn 9 November 2010, indicates that on 1 July 2010 the Respondent returned a call from Ms Moroney, who is a paralegal of the Applicant’s solicitor’s firm. The affidavit states that during that phone call, the Respondent told Ms Moroney he was living at Unit 9, 25 Ashburn Place, Gladesville, New South Wales (the Ashburn Address). However, the affidavit does not indicate whether Ms Moroney informed him of the proceedings during that call. [7] Subsequently on 12, 15 20 July 2010 the agents attempted to serve the Respondent at the Ashburn address (see paragraph 7(a) of Barbara Sim’s affidavit). On 20 July, the agent spoke to a male through the front door of that property, but that person claimed he did not know the Respondent. The agent then called the Respondent’s known mobile number and heard a phone ringing inside the house, casting, in my view doubt about the denial referred to in the previous sentence. [8] From paragraph 10 of Barbara Sim’s affidavit, further property and electoral role searches were made but it seems that the Respondent no longer resides at the address indicated on those searches. Nor is the Applicant or their solicitors aware of any other address where service may be attempted. -- 3 of 5 -- 4 [9] The agent made additional attempts of service on 8, 13, 16, 24 and 26 October 2010 at the Ashburn address and although footsteps have been heard inside, no one answered the door (see paragraph 12(a) of Barbara Sim’s affidavit). Calling cards and phone calls to the Respondent have also been left unanswered. [10] 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.” [11] 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. [12] The Applicant proposes to dispense with personal service by posting a copy of the Claim and Statement of Claim to both the Welby and Ashburn addresses. From the facts before me, the Respondent has told the Applicant his current address and it seems he has avoided contact with the agent, thereby evading service at the Ashburn address. -- 4 of 5 -- 5 [13] In my view the Claim and Statement of Claim will be likely to be brought to the knowledge of the Respondent if service is affected in the proposed way and I see no reason why I should not make the proposed orders. [14] With regards to costs, the Applicant seeks costs of and incidental to this application. No schedule of costs has been provided by the Applicant. Without having heard any submissions from the Respondent, I am reluctant to make such orders and in that case, order the Applicant’s costs to be the applicant’s costs in the cause. -- 5 of 5 --