Bidfood Australia Limited v Anderson
[2020] QSC 356
•25 November 2020
SUPREME COURT OF QUEENSLAND
CITATION:
Bidfood Australia Limited v Anderson & Anor [2020] QSC 356
PARTIES:
BIDFOOD AUSTRALIA LIMITED
ACN 000 228 231
(plaintiff)v
STEPHEN WAYNE ANDERSON
(first defendant)
and
SUZANNE MARGARET ANDERSON
(second defendant)FILE NO: BS 2284 of 2020
DIVISION:
Trial Division
PROCEEDING:
Application for substituted service
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
25 November 2020
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Applegarth J
ORDERS:
1. The application filed 17 November 2020 is dismissed.
2. The plaintiff’s costs of and incidental to the application filed 17 November 2020 not be recovered by the plaintiff in any event.
3. In the event the plaintiff seeks an order for costs, it should show cause as to why the costs of and incidental to paragraphs 1 to 4 of the claim filed 2 March 2020 should not be assessed on the Magistrates Court scale.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where the plaintiff applies for an order dispensing with personal service of a claim and statement of claim – where the proffered method of substituted service is sending sealed copies of court documents to a mobile phone number – where the application is sought to be determined without an oral hearing – whether an order for substituted service should be made
This is an application for substituted service. The applicant/plaintiff seeks an order that personal service of the claim and the statement of claim be dispensed with and that the second defendant be served by sending her “a Sealed copy of the Statement of Claim and Claim” to the second defendant’s mobile number. How sealed court documents are sent to a mobile number is unexplained. Perhaps the plaintiff’s solicitor has in mind an attached photograph. I cannot tell.
The applicant asked for the application to be decided without an oral hearing. However, its solicitors did not initially comply with the procedure for such a matter by including written submissions and a copy of the requested order. Eventually submissions and a draft order were forthcoming. However, the material in support of the application for substituted service is lamentably deficient.
The written submissions are woeful. Only one paragraph of them concerns the substance of the application, as distinct from why the applicant seeks the application to be heard and determined without an oral hearing. That paragraph reads:
“After numerous attempts, our office has been unsuccessful in effecting service of the Claim and Statement of Claim filed in these proceedings on 2 March 2020. Attempts of service are contained in the Affidavit of Hannah Cavalieri affirmed on 28 September 2020.”
There is no reference in the submissions to the relevant rule, its requirements or case law which authoritatively determines what an applicant for substituted service must prove in a case like this.
The function of written submissions, either at an oral hearing or in an application for a matter to be heard without an oral hearing, is to assist the Court as to the relevant law and the facts.
Judges routinely hear applications for substituted service “on the papers” as a means of containing costs. Often we are assisted by helpful written submissions. This is not such a case.
The proceeding
The plaintiff alleges that it supplied goods and services to a company which has since been wound up. It says that it entered into a “Commercial Account Application” with the company and the first and second defendants on or about 27 April 2018. It says that it supplied goods and services and issued invoices in an amount totalling $13,072.60 and that the amount remains due and payable. It says that each defendant guaranteed the payment.
It also alleges that the first and second defendant charged to the plaintiff all their present and future interests in land with payment of all debts and monetary liabilities of the company pursuant to the agreement.
As a result, the plaintiff sues the first and second defendants in the Supreme Court proceedings for the sum of $13,072.60 plus $25 being the amount incurred by the plaintiff in conducting necessary searches. It also seeks costs. These are the first four paragraphs of the prayer for relief in the claim. It then seeks the following additional relief:
“As against the Second Defendant only, the Plaintiff claims:-
5. A Declaration that by Clause 6.3 read together with the Guarantee Indemnity and Charge of that part of a written Agreement dated 27 April 2018 between the First Defendant, Second Defendant (collectively ‘Defendants’) and the Plaintiff, the Defendants grant an equitable charge or mortgage to the Plaintiff in respect of their interest in any present or future in land and:
a.the First Defendant’s interest in the whole of the land contained in Title Reference 50143864; and
b.the Defendants’ interest in the whole of the land contained in Title Reference 50299094.
6. Declaration that the equitable charge or mortgage charges the First Defendant’s and the Defendants’ interest in the land identified at paragraph 5(a) and paragraph 5(b) (collectively ‘Land’) with the payment of all moneys owing, including claims for interest and legal costs on a full indemnity basis, pursuant to:
a.The Agreement between the Plaintiff and the Defendants dated 27 April 2018.
7. An order that the equitable charge or mortgage be enforced by sale;
8. Relief pursuant to Section 99(2) and/or alternatively Section 100 and/or alternatively Section 38 of the Property Law Act 1974 (QLD);
9. An order that the First Defendant and the Defendants delivers up possession of the Land to the Plaintiff or alternatively, that the Plaintiff recover against the First Defendant’s and Defendants’ possession of the Land.”
On various occasions I have questioned the cost and utility of trading corporations instituting proceedings like these in the Supreme Court without first seeking to obtain expeditiously a monetary judgment in the Magistrates Court. The rationale appears to be to commence proceedings in support of caveats that have been lodged against property. That does not, however, justify such a plaintiff obtaining costs assessed on the Supreme Court scale for what is, in part, a debt recovery exercise for $13,000.
The affidavit in support of the application for substituted service
The affidavit in support of the application for substituted service does not address the requirements of the rule. It notes that the second defendant’s address as listed in the 27 April 2018 Credit Account Application is 12 Fern Gully Place. The exhibits to the affidavit are wrongly lettered and one was omitted, necessitating my Associate to ask the solicitor for the relevant exhibit. My Associate and I have better things to do with our time than ensure that affidavits are correctly marked and have the required exhibits annexed to them.
The affidavit exhibits a report from a process server of having attended at the Fern Gully Place address on 14 March, on 28 March and on 18 April 2020. On the first two occasions there was no-one home. On the third occasion the occupant said he did not know of the second defendant. In other words, that report did not indicate that the second defendant was resident at that address. It tended to indicate the opposite.
The next annexure to the affidavit is described as a “skip trace report”. It is fairly unintelligible and proves nothing. It certainly does not prove that the second defendant was resident at the 12 Fern Gully Place address at the relevant time and was evading service.
By August 2020 the property was vacant.
Another exhibit to the affidavit shows that 12 Fern Gully Place was sold on 20 August 2020. Further evidence, if any was needed, that the second defendant does not live at that address and that the attempts to serve her there in March and April 2020 were probably pointless.
The deponent says that on 22 September 2020 she called the second defendant’s mobile number and had a conversation in which:
(a)the second defendant confirmed who she was;
(b)the second defendant advised that she had separated from the first defendant and provided the address of his parents and of his lawyer; and
(c)advised that she had been financially abused by the first defendant and is homeless.
A contemporaneous file note confirms this.
Remarkably, neither the file note nor the affidavit indicates that the solicitor asked the second defendant whether it would be possible to make arrangements to have the documents personally served upon her at a mutually convenient time and place.
The affidavit material establishes that it is not reasonably practicable to serve the second defendant at the property which she once jointly owned. It does not prove that the plaintiff is unable to locate the second defendant and to serve her. It does not prove that the second defendant is attempting to evade service.
The application for substituted service is dismissed. The plaintiff should not be able to ever recover the costs associated with this failed and unsatisfactory application.
I make the orders and directions that appear at the front of these reasons.
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