Commonwealth Bank of Australia v Webber

[2012] VCC 1210

Not restricted
IN THE COUNTY COURT OF VICTORIA	Revised from transcript of oral reasons

AT MELBOURNE

CIVIL DIVISION

COMMERCIAL LIST
BANKING & FINANCE DIVISION

Case No. CI-11-05996

COMMONWEALTH BANK OF AUSTRALIA	Plaintiff
v
CHRISTOPHER JOHN WEBBER	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2012
DATE OF JUDGMENT	14 August 2012
CASE MAY BE CITED AS:	Commonwealth Bank of Australia v Webber
MEDIUM NEUTRAL CITATION:	[2012] VCC 1210

REASONS FOR RULING

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APPEARANCES:	Solicitors
For the Plaintiff	Ms H. Cosham	Gadens Lawyers
For the Defendant	Mrs Webber (leave to appear on behalf of Mr Webber)

HER HONOUR:

1       This is the return of a Summons dated 19 July 2012.  The Summons is supported by an Affidavit which appears to have been sworn on 19 July 2012.  The Summons seeks orders to set aside a Judgment of 31 January 2012.

2       There was an oral hearing in this matter this morning.  Mrs Webber obtained leave to appear on behalf of her husband, Mr Webber, who also sat with her in Court and generally acquiesced in Mrs Webber making oral submissions on his behalf. 

3       By way of brief background, the Writ in this matter was issued on 12 December 2011 wherein the plaintiff sought possession of 10 Precious Road Diggers Rest (the property).  A Judgment in default of appearance was then obtained on 31 January 2012.    A Warrant was issued and in June 2012 the defendant and Mrs Webber were evicted from the property which has clearly  upset both Mrs Webber and her husband.  The defendant then issued a Summons dated 12 June 2012 which sought to set aside the Warrant.  In the result, on 29 June 2012, His Honour Judge Ginnane dismissed that  summons which he treated as an application to stay the operation of the Warrant. 

4       The defendant then issued the summons returnable today which seeks to set the default judgment aside.

5       I have taken the time to read the Affidavit in support this morning and to hear from Mrs Webber. 

6       The essence of her submissions is that there was an irregularity in the Affidavit of service of Raymund Francis Cocking of 16 January 2012 which was filed in support of the default judgment. In particular, she maintained that CHRISTOPHER JOHN WEBBER (in capitals) is not the same as Christopher John Webber, her husband (without capitals).  She does, however, accept that the  documents left on the ground by the process server were picked up by her husband at the time of service in order “to avoid littering.”

7       I am not satisfied on the material before me that the service is irregular on the basis of any of the matters raised by Mrs Webber. 

8        I did, however, raise a concern as to whether the leaving of documents on the ground in front of Mr Webber was sufficient service pursuant to Order 6.03(1)(b) which states that if the person does not accept the document service is to be effected “by putting the copy down in the person’s presence and telling the person the nature of the document.”

9       However, paragraph 2 of Mr Cocking’s affidavit states that he generally explained “why I was there…”’ This appears sufficient in the difficult circumstances he describes. 

10      Moreover, pursuant to Rule 6.11, where for any reason a document has not been served in the manner required by the Rules, but the document has come to the notice of the person served, then the document is taken to be served on the day it came to the person’s notice.  Given the document clearly came to the attention of the defendant in this case on 11 January 2012, the writ is thereby taken to be served on the defendant.

11      The judgment is therefore a regular judgment. However, the defendant raised no matters which warranted the setting aside of the judgment if it was treated as regular.  In particular, no defence on the merits was advanced.

12      In all circumstances of the case then, the defendant’s Summons dated 19 July 2012 will be dismissed.