Capital Finance Australia Limited v Brand

[2009] QDC 35

DISTRICT COURT OF QUEENSLAND

CITATION:

Capital Finance Australia Limited v Brand [2009] QDC 35

PARTIES:

CAPITAL FINANCE AUSTRALIA LIMITED
ACN 069 663 136
(plaintiff)

v

GEOFFREY RICHARD MACQUARIE BRAND
(defendant)

FILE NO/S:

3657/2008

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application on the papers.  Application for Substituted Service

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

  26 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2009

JUDGE:

Kingham DCJ

ORDER:

(1)  That personal service of the claim and statement of claim upon the defendant be dispensed with;

(2)  That the plaintiff forward copies of this order, claim and statement of claim bearing  No. 3657 of 2008 by pre-paid post addressed to the defendant at 1/93 Bundall Road, Surfers Paradise, Queensland, 4275. 

(3) That service be deemed to be effected upon the defendant at the expiration of seven (7) days from the taking of the step referred to in paragraph [2]. All costs be reserved.

CATCHWORDS:

Rule 116 Uniform Civil Procedure Rules 1999 (Qld).

COUNSEL:

SOLICITORS:

Worcester and Co for the defendant

1. This is an application on the papers for an order for substituted service of the claim and statement of claim in these proceedings upon the defendant. 

1. I am satisfied the plaintiff has made reasonable attempts to effect personal service of those documents upon the defendant.  Mr Brand is the director and secretary of a company Debrand Pty Ltd and in the company records his address is listed as Unit 1, 93 Bundall Road, Surfers Paradise in Queensland.  The plaintiff’s service agent attended at that address on 5, 7, 11, 14, 17, 20, 22, 25 and 29 January and found no attendance.  The agent then rang a mobile number which he had been informed was that of the defendant.  A person who identified himself as the defendant confirmed his residential address and advised that all documents were to be served on his solicitors Worcester & Co.

1. A paralegal in the employ of the plaintiff’s solicitors contacted that firm and spoke with a male employee who identified himself as “Bill”.  Bill told her that he acted on behalf of the defendant but did not hold instructions to accept service of the documents and would not be obtaining such instructions.  Further attempts to serve the documents at the defendant’s residential address on 2, 4 and 7 February were unsuccessful.

1. The plaintiff seeks an order that personal service be dispensed with and that the documents be served by pre-paid post addressed to the defendant at 1/93 Bundall Road, Surfers Paradise, Queensland.   Further, that service be deemed to be effected upon the defendant seven days after the documents are forwarded by pre-paid post.

1. I am satisfied that it is appropriate to make that order pursuant to Rule 116 of the Uniform Civil Procedure Rules 1999 (Qld).

1. My orders are :

(1)          That personal service of the claim and statement of claim upon the defendant be dispensed with;

(2)          That the plaintiff forward copies of this order, claim and statement of claim bearing  No. 3657 of 2008 by pre-paid post addressed to the defendant at 1/93 Bundall Road, Surfers Paradise, Queensland, 4275. 

(3) That service be deemed to be effected upon the defendant at the expiration of seven (7) days from the taking of the step referred to in paragraph [2]. All costs be reserved.