Commonwealth Bank of Australia v Gray

[2010] QSC 493

SUPREME COURT OF QUEENSLAND

CITATION:

Commonwealth Bank of Australia v Gray & Ors [2010] QSC 493

PARTIES:

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
(First Plaintiff)
v
SUSAN ELIZABETH GRAY (ALSO KNOWN AS SUSAN ELIZABETH MORTON)
(First Defendant)
and
PAMELA ANNE GLENISTER
(Second Defendant)
and
DESMOND GLENISTER
(Third Defendant)
and
ANASTASIA MARGARET GROTT
(Fourth Defendant)
and
SNOWHITE PASTRY PTY LTD
(Fifth Defendant)

FILE NO/S:

BS3657/09

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

DELIVERED ON:

31 March 2010

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

25 March 2010

JUDGE:

Douglas J

ORDER:

That the fourth defendant pay to the plaintiff the amount of $32,794.80 including interest pursuant to s 47 of the Supreme Court Act 1995 and costs to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SERVICE – where the fourth defendant’s solicitors had withdrawn – where the fourth defendant had not supplied the solicitors for the plaintiff with a residential or business address other than the address of her former firm of solicitors – whether the plaintiff’s solicitors could effect service by serving an order at the fourth defendant’s last known residential address

Uniform Civil Procedure Rules 1999, r 986, r 987

SOLICITORS:

Gadens Lawyers for the plaintiff

1. Douglas J:  The Plaintiff has applied for judgment against the fourth defendant on the basis that she has not complied with an order made by me on 23 December 2009 to provide disclosure by 8 January 2010 in default of which the plaintiff would be entitled to enter judgment against her.

1. The statement of claim alleges that the fourth defendant deposited a cheque drawn on the National Australia Bank Limited with the plaintiff bank which was dishonoured.  Notwithstanding the dishonour the pleading alleges that the fourth defendant received jointly two amounts totalling $35,000 into an account with Westpac Banking Corporation which the plaintiff demanded she repay.  It then alleges that she has not repaid that amount to the plaintiff and that she is liable to repay it or holds it on constructive trust for the plaintiff as the rightful owner of the money. 

1. My order of 23 December 2009, in requiring disclosure by 8 January 2010, contained a self executing provision that, in default of disclosure, the plaintiff should be entitled to enter judgment against the fourth defendant for all of its claim in this proceeding.  A previous application for judgment was made to Martin J which included claims for damages and compensation under the Australian Securities and Investment Commission Act 2001 and the Trade Practices Act 1974. Those claims are not now pursued nor is a claim for payment of costs fixed in a particular amount, matters which caused his Honour some concern because the only judgment he felt he could give was that there be judgment for damages to be assessed and because there was no material on which he could fix the indemnity costs in the particular amount claimed.

1. Another issue addressed in the written submissions accompanying this application on the papers is the question of service on the fourth defendant of the order made on 23 December 2009.  Because her solicitors had withdrawn earlier in 2009 it was incumbent on the applicant to serve the order on the fourth defendant’s residential or business address.  It has attempted to serve her by delivering the order to two addresses at one of which she appears to have resided in the past.  She advised the plaintiff’s solicitors that she was no longer residing at that address on 27 November 2009.  It appears, however, that documents served at that address within the last two months have come to her attention.  That property is owned by her mother-in-law.  The other property is one owned by her father-in-law and the address provided to a new firm of solicitors she told the solicitors for the plaintiff were to act for her.  Those solicitors, however, have advised the plaintiff that they do not have instructions to act for her and forwarded all correspondence to the second of the two addresses to which I have referred. 

1. No “residential or business address” other than the address of her former firm of solicitors was supplied by the fourth defendant in her notice of intention to defend. Nor has she filed a notice that she is acting in person pursuant to r 986 of the Uniform Civil Procedure Rules 1999 and no notice of change of solicitor has been filed pursuant to r 987.

1. In the circumstances it seems sufficient to me, in the absence of the fourth defendant providing such information as she is required to do by the rules, that service of the order be effected in the manner described in the material.  They include her last known residential address. 

1. Accordingly I shall give judgment in the terms of the draft judgment filed with the application including interest pursuant to s 47 of the Supreme Court Act 1995 and costs to be assessed on the standard basis.