Bunnings Group Limited v Lockwood - [2014] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION:

Bunnings Group Limited v Lockwood & Anor [2014] QDC 94

PARTIES:

BUNNINGS GROUP LIMITED
(ACN 008 672 179)

(applicant)

v

KUMARA STANLEY LOCKWOOD

(first respondent)

and

RACHEL LOUISE JONES

(second respondent)

FILE NO/S:

524/2014

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2014 (On the papers)

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.The application filed on 10 April 2014 is dismissed.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where personal service was attempted at the respondents’ property – where it is was not established whether the respondents continue to reside at their property – where searches indicated further locations that the respondents would likely be contactable – where no attempts of personal service were made at these further locations – whether personal service is impracticable

Uniform Civil Procedure Rules 1999 (Qld), r 105, r 116(1),

Kendall v Sweeney [2002] QSC 404
Miscamble v Phillips and Hoeflich (No. 2) [1936] St R Qd 272

SOLICITORS:

Bennett & Philp Lawyers for the applicant

By an originating application the applicant seeks the appointment of a statutory trustee for the sale of land and improvements described as Lot 393 on RP136433 County of Ward Parish of Tamborine, being all that land contained in Title Reference 15010098, with the address of 5 Makalu Court, Eagle Heights (the property). On 17 September 2013 the Supreme Court of Queensland gave judgment for the applicant against the first respondent in the sum of $30,947.30. The court also declared that pursuant to a guarantee between the applicant and the first respondent, the applicant held an equitable interest as chargee in respect of the first respondent’s interest in the property, with the amount secured by the equitable charge being $30,947.30.

The property is owned by the first and second respondents as joint tenants.

The applicant has been unable to serve the originating application and affidavit in support personally upon either of the respondents as required by r 105 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). It seeks an order for substituted service pursuant to r 116 of the UCPR.

Before the court can order substituted service it must first be established that personal service is impracticable.[1] If so satisfied, the court must then be further satisfied that service by the substituted means is likely to bring the proceeding to the knowledge of the other party.[2]
[1]Rule 116(1) UCPR; Kendall v Sweeney [2002] QSC 404 at [15].
[2]Miscamble v Phillips and Hoeflich (No. 2) [1936] St R Qd 272 at 274.

The applicant has failed to establish impracticability.

An affidavit of Yvonne Maria O’Byrne filed in support of the application exhibits reports from commercial agents engaged by the plaintiff to attempt personal service upon the respondents. In a report dated 27 February 2014 the agents report having attended at the address…

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: [2014] QDC 94
Decision Date: 1 May 2014

CaseChat Overview and Summary

In the matter of Bunnings Group Limited v Lockwood, the issue before the court was whether personal service of legal proceedings could be deemed impracticable under the circumstances presented. The plaintiff, Bunnings Group Limited, sought to serve legal documents on the respondents, Lockwood, by personal service. After unsuccessful attempts at their known property, the court was required to determine if further efforts should have been made at additional locations where the respondents might be contactable.

The primary legal issue revolved around the definition and application of 'impracticable' in the context of personal service. The court considered whether the lack of further attempts at alternative locations constituted a failure to exercise due diligence, thereby rendering personal service impracticable. The court needed to weigh the plaintiff’s efforts against the requirements for establishing whether personal service was genuinely unfeasible.

The court found that the plaintiff had made reasonable efforts to locate the respondents at their known address but had not pursued alternative contact points identified through searches. The court held that these additional locations suggested potential avenues for service that were not explored. Consequently, the court concluded that the plaintiff had not sufficiently demonstrated that personal service was impracticable. The application filed on 10 April 2014 was dismissed on these grounds.

Orders

Orders of the court

1.The application filed on 10 April 2014 is 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:	Bunnings Group Limited v Lockwood & Anor [2014] QDC 94
PARTIES:	BUNNINGS GROUP LIMITED (ACN 008 672 179) (applicant) v KUMARA STANLEY LOCKWOOD (first respondent) and RACHEL LOUISE JONES (second respondent)
FILE NO/S:	524/2014
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2014 (On the papers)
JUDGE:	Horneman-Wren SC DCJ
ORDER:	1.The application filed on 10 April 2014 is dismissed.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where personal service was attempted at the respondents’ property – where it is was not established whether the respondents continue to reside at their property – where searches indicated further locations that the respondents would likely be contactable – where no attempts of personal service were made at these further locations – whether personal service is impracticable Uniform Civil Procedure Rules 1999 (Qld), r 105, r 116(1), Kendall v Sweeney [2002] QSC 404 Miscamble v Phillips and Hoeflich (No. 2) [1936] St R Qd 272
SOLICITORS:	Bennett & Philp Lawyers for the applicant