Borch v Answer Products Inc - [2000] QSC 379

SUPREME COURT OF QUEENSLAND

CITATION: Borch & Ors v Answer Products Inc & Ors [2000] QSC 379

PARTIES:
NICHOLAS JAMES BORCH

(first plaintiff)

JOHN RICHARD BORCH
(second plaintiff)
JILL BORCH
(third plaintiff)
MICHAEL BORCH
(fourth plaintiff)
v
ANSWER PRODUCTS INC
(first defendant)
STEVE CRAMER
(second defendant)
KEV OLSEN CYCLES, a firm
(third defendant)

FILE NO: S43 of 1999

DIVISION: Trial Division

DELIVERED ON: 26^th October 2000

DELIVERED AT: Brisbane

HEARING DATE: 4^th October 2000

JUDGE: Holmes J

ORDER: Application dismissed

CATCHWORDS: PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – Service Outside the Jurisdiction – Rule 124 Uniform Civil Procedure Rules

COUNSEL: R. A. Myers for the plaintiffs
W Sofronoff QC with R Lilley for the first defendant
S. A. White (solicitor) for the second defendant
J. T. McIntyre (solicitor) for the third defendant

SOLICITORS: Thynne & Macartney as town agents for Hede Byrne Hall for the plaintiffs
Quinlan Miller & Treston for the first defendant
Minter Ellison for the second defendant
Phillips Fox for the third defendant

HOLMES J: The applicant first defendant seeks the setting aside of service of the plaintiffs’ claim on it, under Rule 16(f) of the Uniform Civil Procedure Rules 1999. It contends that the claim was served without leave in circumstances where the proceeding does not fall within any of the categories set out in Rule 124 of the Uniform Civil Procedure Rules. That rule prescribes the types of proceedings which may be served without leave:

“Service outside Australia
124 (1) An originating process for any of the following may be served on a person outside Australia without the court’s leave -
(a)a proceeding based on a cause of action arising in Queensland;

(b) a proceeding about -
(i) property situated in Queensland; or
(ii)obtaining evidence for a future claim relating to property in Queensland;

(c)a proceeding in which an Act, deed, will, contract, obligation or liability affecting property in Queensland is sought to be interpreted, rectified, set aside or enforced;
(d)a proceeding for relief against a person domiciled or ordinarily resident in Queensland;

(e) a proceeding for -
(i)the administration of the estate of a person who died domiciled in Queensland; or
(ii)relief that might be obtained in a proceeding for the administration of the estate of a person who died domiciled in Queensland;

(f)   a proceeding for the execution of a trust if -
(i)     the trust is created or declared by an instrument; and
(ii)     the person is a trustee; and
(iii)the execution relates to trust property in Queensland; and
(iv)the trust ought to be executed under the law of Queensland;

(g) a proceeding relating to a contract -
(i) made in Queensland; or
(ii)made by 1 or more parties carrying on business or residing in Queensland; or
(iii)made by or through an agent carrying on business or residing in Queensland on behalf of a principal carrying on business or residing outside Queensland; or

(iv) governed by the law of Queensland;
(h)a proceeding based on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QSC 379
Decision Date: 26th October 2000

CaseChat Overview and Summary

In the case of Borch v Answer Products Inc, the applicant, Borch, sought to serve a statement of claim outside of the jurisdiction of the court under the provisions of Rule 124 of the Uniform Civil Procedure Rules. The respondent, Answer Products Inc, opposed the application on the grounds that it had not provided its consent to the service of the statement of claim outside of the jurisdiction. The application was heard in the Supreme Court of Queensland. The court was required to determine whether the service of the statement of claim was permissible under Rule 124 and whether the respondent's lack of consent was a valid basis for opposing the application.

The court considered the requirements of Rule 124, which sets out the circumstances in which a court may permit service of a statement of claim outside of the jurisdiction. The court noted that the rule provides that a court may permit service outside of the jurisdiction if it is satisfied that the defendant has consented to such service or if the court is satisfied that the defendant is amenable to service in a particular jurisdiction. The court also considered the respondent's argument that its lack of consent was a valid basis for opposing the application. The court found that the respondent's lack of consent was not a sufficient basis for opposing the application, as the rule permits service even in the absence of consent if the other requirements of the rule are satisfied.

The court ultimately dismissed the application on the basis that the applicant had not satisfied the requirements of Rule 124. The court found that the applicant had not demonstrated that the respondent was amenable to service in the jurisdiction in which the statement of claim was to be served, and that the respondent's lack of consent did not preclude service outside of the jurisdiction. The court held that the application was therefore dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Borch & Ors v Answer Products Inc & Ors [2000] QSC 379
PARTIES:	NICHOLAS JAMES BORCH (first plaintiff) JOHN RICHARD BORCH (second plaintiff) JILL BORCH (third plaintiff) MICHAEL BORCH (fourth plaintiff) v ANSWER PRODUCTS INC (first defendant) STEVE CRAMER (second defendant) KEV OLSEN CYCLES, a firm (third defendant)
FILE NO:	S43 of 1999
DIVISION:	Trial Division
DELIVERED ON:	26^th October 2000
DELIVERED AT:	Brisbane
HEARING DATE:	4^th October 2000
JUDGE:	Holmes J
ORDER:	Application dismissed
CATCHWORDS:	PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – Service Outside the Jurisdiction – Rule 124 Uniform Civil Procedure Rules
COUNSEL:	R. A. Myers for the plaintiffs W Sofronoff QC with R Lilley for the first defendant S. A. White (solicitor) for the second defendant J. T. McIntyre (solicitor) for the third defendant
SOLICITORS:	Thynne & Macartney as town agents for Hede Byrne Hall for the plaintiffs Quinlan Miller & Treston for the first defendant Minter Ellison for the second defendant Phillips Fox for the third defendant