Australia and New Zealand Banking Group Ltd v Beard

[2013] QDC 237

[2013] QDC 237

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No. 4638 of 2012

AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED  Applicant

and

CHERIE ELKE BEARD and ANOTHER            Respondent

BRISBANE

3.09 PM, MONDAY, 22 JULY 2013

ORDER

CATCHWORDS

Uniform Civil Procedure Rule r 116

Substituted service of claim and statement of claim allowed by various means, including electronically by email to alternative versions of what was presumably a single email address – notification by text messages to mobile phone numbers also required

HIS HONOUR:   This is an application by the plaintiff bank, proposed to be determined without an oral hearing, seeking that personal service of the claim and statement of claim on the defendants be dispensed with, and that service be effected by other means,  namely, posting of the documents, together with a copy of the order to the defendants by ordinary prepaid post to a post office box in Geraldton, Western Australia; by posting of the same to them to an address in Leinster, Western Australia; by delivering the same to that address; and by sending a copy of the documents to the defendants by email to [email protected].  There should be added a requirement that text messages be sent to mobile telephone numbers associated with the defendants letting them know what has happened. 

A number of amendments are required to the draft order proffered as required by the rules.  One is that “defendant”, in paragraph 2(b) should be “defendants”.  Another is that the requirement of sending documents by email should specifically require that a copy of the order be sent.  That provision ought to be expanded to require that the email communications be sent “also to [email protected]” which it seems to me from perusal of the relevant exhibit to the affidavit may be the correct address rather than the one nominated.  It is my understanding that any departure from the precise email address will lead to failure of the communication.   The fifth component of the service authorised by the court is “(e) sending text messages advising that service by post of the District Court claim D4638 of 2012 and statement of claim for possession of lots 60 and 91 RP124435 and lot 206 on RP131864 has been authorised by the court to 20408794822 and 0428297710”.

The material filed is less perfect than might be desired, perhaps attributable to the preparation of some of it “in-house”.   The statement of claim refers to the unimproved value of “the Land” not exceeding $750,000 - a statement no doubt inserted to establish the court’s jurisdiction.  There’s a complication in that there are three parcels of land concerned here, only one of which has the second defendant as a (part) proprietor.  There is no definition of “the Land”.  But information exhibited to Ms Williams’ affidavit tends to show that the aggregate value of the three parcels, which are all unimproved or vacant, would fall well short of the jurisdictional limit. 

The affidavit of Ms Venuto, in the execution part contains annotations that are strange to me.  They appear to have been completed by an unidentified Australian Legal Practitioner with a Melbourne address, that being the place of execution, but, with a view to satisfying requirements of New south Wales law, or an associated “JP Ruling 003-confirm the identify for NSW statutory declarations and affidavits” for purposes of attesting signature of documents by a person who may not be amenable to removing a face covering.

There will be an ordered in terms of the initial draft, which incorporates the amendments alluded to above. 

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