Australian Mutual Provident Society v Pandel Forsyth Pty Ltd & Anor [2000] QSC 291

Reporting Bureau sc en /f;lq/ TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No 10349 of 1997 AUSTRALIAN MUTUAL PROVIDENT SOCIETY ARBN 008 387 371 and PANDEL FORSYTH PTY LTD ACN 001 803 023 and P~UL FRANCIS FORSYTH BRISBANE .. DATE 02/08/2000 JUDGMENT 1 -11.h Floor, The Law Court:,;, George Str1:cl, Brbh:111c, Q. ,WOO REVISED COPIES ISSUED State Reporting Bureau Date if IF' I rr-o Plaintiff First Defendant Second Defendant Telephone: (07) 32-t7 -tJ60 F:1:<: (07) J2-t7 55.12 -- 1 of 3 -- 02082000 Tl/RAG19 M/T 7906/2000 (Mackenzie J) HIS HONOUR: This is an application under rule 72 of the Uniform Civil Procedure Rules for the purpose of substituting the executrix of the second defendant's estate and proceeding against the executrix in the action. There has been a previous application in this, on the papers, which proved to be unsuccessful because the Judge was not satisfied that all persons who might be affected by the order had been served. The present application relates to further attempts to resolve the issue of service, which in the absolute sense has been unsuccessful. The situation seems to be that Rigby Lawyers acted initially for all of the defendants but since the death of Mr Forsyth they have communicated to say that they do not act for the executor of his estate. However, they still act for the company. The effect of that is that they have no instructions on behalf of the estate and do not have instructions to receive service on behalf of Mrs Forsyth. There is evidence that an attempt was made in Sydney to serve the proposed defendant but that was not able to be successful because the complex was a secure complex and attempts to have contact made have proved to be equally unsuccessful, despite leaving messages in that regard. The situation seems to me to be that if Rigby Lawyers are still acting for Pandel Forsyth Pty Ltd and Laurel Forsyth is still the sole director on the record of Pandel Forsyth Pty Ltd there is at least a scintilla of evidence if they have communicated 10 30 40 50 the existence of the application to Pandel Forsyth Pty Ltd that iG 60 2 JUDGMENT -- 2 of 3 -- 02082000 Tl/RAG19 M/T 7906/2000 (Mackenzie J) she should be aware of the application coming on today. It seems to me that in those circumstances the risk of prejudice is considerably less than it may be if there was no evidence at all to suggest that she had not had notice of the application. 10 The situation, it seems to me, is that in all of the circumstances I would be justified on the evidence as it now exists in making an order in terms of the draft provided to me by Mr Derrington, but to guard against the eventuality that Mrs Forsyth has indeed not been aware of the proceedings today and 20 wishes to resist the order sought by giving her liberty to apply within 14 days of service of the order upon Rigby Lawyers. So I will made an order in terms of the draft initialled by me and placed with the papers. I will note also that Mr Derrington has undertaken on behalf of his solicitors to communicate the contents of my oral reasons to Rigby Lawyers. 3 JUDGMENT 30 40 50 60 -- 3 of 3 --