Australia and New Zealand Banking Group Ltd v Grupe

[2013] QDC 250

[2013] QDC 250

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1298 of 2013

AUSTRALIA & NEW ZEALAND  BANKING            Plaintiff
GROUP LIMITED

and

STEPHEN GRUPE  Defendant

BRISBANE

2.49 PM, TUESDAY, 23 JULY 2013

JUDGMENT

CATCHWORDS

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

Uniform Civil Procedure Rules r116

HIS HONOUR:   This is an application by the plaintiff bank proposed to be determined without an oral hearing;  it seeks that personal service of the claim and statement of claim be dispensed with and alternative arrangements for their service authorised pursuant to rule 116, it is the common proceeding in which a lender with the benefit of security by way of a mortgage seeks recovery of possession of the mortgaged property consequent upon default by the borrower and payment of the secured indebtedness.  The property is a residence where the defendant lives;  there are many circumstances confirming that, including Australian Electoral Commission records, telephone directories, mail there addressed to him clearly visible to a process server, a Queensland valuation and sales service, title records and indeed the defendants confirming to an employee of the plaintiff’s lawyers on returning an unanswered call to his mobile confirming that the place was his address. 

There have been no less than 11 attendances by the process services, on some occasions there appears to have been no one at home, on others there have been people audible inside who refuse to answer the door, notwithstanding repeated knocking.  In more recent times, the gate to the property has been locked and there happened the telephone call initiated by the defendant who has throughout declined invitations to nominate an occasion when he might be conveniently served.  He posed effectively the question “why would I try and make it easier for the bank to take my house;  why would I help you?”.  He indicated that, regarding the address, “it’s the only house I have, it’s the one you guys keep coming to” and he effectively challenged the plaintiff to do its worst by way of seeking to get him served. 

These matters are mentioned because the proposed order would require the defendant to pay the plaintiff’s costs of and incidental to the application on the indemnity basis.  I would not be prepared, in the circumstances recounted, to make that order; it’s not clear at this stage how meritorious it is the plaintiff’s claim.  Nothing is put before the court to show a contractual entitlement, that I accept may well exist to indemnity costs.  The submissions made to the court in support of the application refer to rule 693 by which the costs of a proceeding do not include the costs of an application in the proceeding unless the court otherwise orders.  I am willing to protect the plaintiff’s interest in recouping some of the costs it has, from some points of view. unnecessarily, been put to and consider the costs order ought to be that the plaintiff’s costs of and incidental to this application be its costs in the proceeding so that if the proceeding is ultimately successful, the plaintiff will get costs then.  I don’t think it’s appropriate at this stage to make an order that the defendant pay costs.  Order as per initialled draft.

______________________