Capital Finance Australia Limited v Christopher Winter Harding

[2010] QDC 521

[2010] QDC 521

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2287 of 2010

CAPITAL FINANCE AUSTRALIA LIMITED	Plaintiff
and
CHRISTOPHER WINTER HARDING	Defendant

BRISBANE

..DATE 29/11/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116, r 119

"Circumstances in which service of claim and statement of claim as "last known address" (pursuant to contract) and by email permitted."

HIS HONOUR:  The Court makes an order in terms of the initialled draft under Rule 116.

The material before the Court indicates that the defendant is probably aware of the claim but not willing to cooperate by making himself available for service.  The plaintiff has been expending considerable resources and presumably incurring costs in attendances at premises where it was expected the defendant might be.

The means of service suggested in the draft order proposed for the claim and statement of claim together with a copy of the Court's order today are service by post to an address at Francis Street, Corinda, which is the last known address of the defendant and in the circumstances arguably an agreed address for service in terms of the "last known address" in contractual documents between the parties for the purposes of Rule 119.

It's difficult to think that where the contractual arrangement is as uncertain as "last known address" without any definition rule 119 is going to be useful; however, there are circumstances here that suggest an appropriate address has been located.

The second mode of service required by the order is by use of email.  Mr Ahmed's affidavit has placed before the Court email communications received from the defendant using the address indicated in the order.  Those email communications are relatively recent and they're on the subject matter of the proceeding.  Mr Harding has declined to accept service by use of email although earlier it might be seen as having indicated that he would.

The email printout Mr Ahmed exhibits do not bear the customary appearance of printouts of email exchanges.  Ms Chung has explained that that's because the emails were not preserved to be printed out but rather copied as "Word" documents which have been available to be reproduced and that explains their somewhat odd format.

Order as per initialled draft.

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