Ask Funding Ltd v Rose

[2011] QDC 145

[2011] QDC 145

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2081 of 2009

ASK FUNDING LTD (ACN 094 503 385)	Plaintiff
and
MOSHIT ROSE	Defendant

BRISBANE

..DATE 11/07/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999, r 116, r 377

Leave to amend claim and statement of claim to increase claims for interest and costs - complications respecting service on defendant who had previously filed a conditional notice of intention to defend

HIS HONOUR:  The Court makes an order in terms of the initialled draft which provides the leave necessary for the plaintiff to amend its claim under rule 377.

The essential changes are to increase the amount of interest nominated and likewise, the amount of costs nominated.  In both respects the claim will become open ended, whereas, doubtless to the plaintiff's request, the claim for costs was a modest one to fixed costs and likewise, the claims to interest didn't leave matters open ended so that continuing interest to the date of some future judgment and after could be recovered.

There have been complications regarding service.  The defendant, who hasn't appeared today when called, on the
7th of September 2009, acting for herself, filed a notice of intention to defend, said to be a conditional one; it appeared to suggest that a more appropriate venue would be Victoria and that if the case was to proceed, the plaintiff should pay all legal costs and travel costs of the defendant and five kids to Brisbane.

The defendant has not taken the steps required if she's to preserve the conditional status of her notice of intention to defend.

The plaintiff has encountered difficulties in effecting service as the address the defendant has given the Court,
35 Almond Street, Caulfield South, Victoria 3162 turns out to be a residential address where the defendant no longer is.

Judge Samios made an order pursuant to rule 116 on the
9th of June 2011 which appears to relate to all future service of documents in the proceeding.  It offers alternatives, giving the relevant document, in a sealed envelope marked for the attention of the defendant, "to an adult employed at Worlds' Most Wanted Models, Level 9, St Kilda Tower at 1 Queen Street Melbourne", or by mailing the document to the defendant at that same address.  The plaintiff was required to serve a copy of the order on the defendant as well.

Adopting what seems to me the appropriate cautious approach, the plaintiff, rather than elect between authorised modes of service, pursued both.  The process server was not let into the premises, although the Court accepts the affidavit evidence that there was a person inside who would not respond to knocks on the door.  The relevant materials were placed under the door.

Whether the first mode of service authorised by his Honour was effectively adopted may be open to argument; assuming there was someone inside, we do not know whether it was an adult.  There could be argument about whether the documents were "given".

In the circumstances, the Court is told from the Bar table that the posted documents came back opened but marked "Return to Sender" which in a way appears to be confirmation that the defendant got them.  The Court proceeds on the basis that the plaintiff is in a position to file an affidavit establishing service by posting.  I'm inclined to think that ought to be done but won't order it. 

There's a difficulty in a relevant employee having left the plaintiff lawyer's firm, however, they are apparently in possession of the documents returned in the post which one would think there bear marks indicating that the asserted posting happened.

The Court is entitled to be reasonably robust given that nothing excessively dire is achieved by the order made today.  The defendant will have intact her entitlement to resist the making of any proposed orders against her which will cost her money. 

It’s sought and ordered that the costs of this application are reserved.

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