ANZ Banking Group Ltd v Solomon

[2012] QDC 81

[2012] QDC 81

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 4302 of 2011

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED	Plaintiff
and
ERIC FREDERICK SOLOMON	Defendant

BRISBANE

..DATE 16/04/2012

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116

Application "on the papers" for substituted service by multiple means of claim for moneys owing and possession under a mortgage of real property - personal service considered impracticable where attempts at service at the defendant's remote residence (necessitating a 200 km round trip by the process server), especially at times when his family indicated he would be there, proved unavailing - requirement that a text message advising making of the order by sent to defendant's mobile phone

HIS HONOUR: The court makes an order in terms of the initialled draft in this application "on the papers" by the plaintiff for dispensation from the requirement of a personally served claim and statement of claim and authorisation under rule 116 of the UCPR for substituted service.

There are similarities between this matter and the preceding one in today's list.  The claim is against a defaulting mortgagor for possession of the mortgaged premises and the amount of the secured debt, that being a sum in excess of $175,000.  The statement of claim contends that as at the 3rd August 2011 there were arrears of $5,382.35 and that two days later the plaintiff gave the necessary notices of demand and default entitling it to possession of the property.

The property is in a remote location requiring a 200 kilometre round trip by process servers to attend.  That's happened on a number of occasions with no useful result even at times when indications to the plaintiff's side from the defendant's wife and from his daughter, the latter being resident at the property, or one or either of them, that the defendant would be there.

On one occasion the process server attended to be told by the daughter that her father was expected back but hadn't turned up.  He works in a similarly remote location, mining in Central Queensland.  It appears the plaintiff does not know where.  He's not on the Electoral Roll.

In the circumstances, I'm prepared to find that service personally is impracticable.  The modes or service proposed are three.  Firstly, delivery of relevant documents and of the court's order to the mortgage property;  secondly, by posting of them to an identified post office box which the defendant's wife has indicated is the only reliable postal address;  and, thirdly, by sending a copy of the documents by email to the lady’s email address.  That's one that has been used in communications by her with the plaintiff bank pursuant to the authority which she has from the defendant to conduct matters in relation to his accounts.

In this case there's a mobile telephone number of the defendant which has been used without useful result to establish contact, “voice mail” having become involved.  Consistently with what was done in the previous matter, I think that a text message ought to be sent to the mobile number identifying the making of this order and that copies of the material served are available from the plaintiff's solicitors.

As in the previous matter, I've sought to underline the importance of what's occurring to the defendant, on the implausible assumption that what's occurring may be a surprise to him, by stipulating that time will begin to run for the purpose of the plaintiff being entitled to proceed in default of a notice of intention to defend being filed once the 4 business days indicated after the things which ought to be done have been done expire.  It will be advisable to include that warning in the text message.

The plaintiff seeks indemnity costs of and incidental to the application.  I'm not at all persuaded that for all the plaintiff's expressed concern that the defendant is seeking to avoid service, matters have reached the stage where it's sufficiently mischievous to bring upon him a penal order for costs.  As in the previous matter, the plaintiff's costs, however, ought to be its costs in the cause.  Order as per initialled draft.

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