Gibbings v McGinn

[2013] QDC 217

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 595 of 2013
STEVEN PETER GREGORY GIBBINGS Plaintiff
and
PETER JAMES MCGINN Defendant
BRISBANE
2.45 PM, MONDAY, 20 MAY 2013
ORDER

CATCHWORDS
Uniform Civil Procedure Rules 116
Service of claim and statement of claim by use of email

HIS HONOUR: The court makes an order in terms of the intialled draft for substituted service of the claim and statement of claim in this proceeding. The document signed differs from that proffered by Mr Dreyer, appearing for the plaintiff applicant, in that his proposal was that service of the documents should be deemed to have occurred immediately after sending of an email forwarding copies of the relevant court documents and of this order. That was only part of the means of substituted service required by the preceding paragraph of the order, which also, in the usual way, required sending of them by ordinary pre-paid post, with a copy of the order. The address selected is on information that’s corroborated by a person who’s apparently the defendant. It is his usual residence but he says himself he’s rarely there.

The plaintiff’s interest in it flows from his being in a position to claim, under the contractual arrangements between the parties, a charge over the defendant’s real property to secure payment of moneys owing for work done. There’s placed before the court an email from the email address identified in the order, complaining about the lodging of a caveat. That makes the email address useful. Mr Dreyer’s submissions provide some comfort for the court in specifying that means of service, which I have embraced before Mr Dreyer found it adopted in a Federal Court decision Speedo Holdings BV v Evans [2011] FCA 1089. The process server has attended at the residence on multiple occasions without any success.

The material before the court indicates that he’s probably aware of the proceeding anyway. The change made to the order is one whereby service is deemed to have

occurred two business days after the steps referred to in paragraph 3 have been taken. The orders are as per the initialled draft.

______________________

CaseChat Overview and Summary

The case of Gibbings v McGinn was heard in the District Court of Queensland. The plaintiff, Steven Peter Gregory Gibbings, brought an action against the defendant, Peter James McGinn, seeking to enforce a charge over the defendant's real property. This arose from contractual arrangements between the parties, which provided that the plaintiff was entitled to a charge to secure payment of moneys owed for work done. The plaintiff's action sought to enforce this charge by obtaining substituted service of the claim and statement of claim on the defendant.

The primary legal issue before the court was whether the substituted service of the claim and statement of claim via email and ordinary pre-paid post was sufficient. The court had to consider the provisions of the Uniform Civil Procedure Rules regarding service and whether the methods proposed by the plaintiff met the requirements. Additionally, the court needed to determine if the service was deemed effective under the rules and if it complied with the conditions outlined in the Federal Court decision in Speedo Holdings BV v Evans.

The court found that the method of service proposed by the plaintiff was acceptable, despite the minor variations from the initial proposal. It was held that service could be deemed to have occurred two business days after the email and post were sent. The court emphasised that the chosen address for service was corroborated and had been used by the defendant himself. The court noted that the defendant had complained about the lodging of a caveat via email, which confirmed the utility of the email address for service purposes. The court also observed that the defendant was likely aware of the proceedings, despite his claims of infrequent presence at the residence. The court's order for substituted service was thus confirmed in the terms of the initialled draft.

The final orders of the court allowed for substituted service of the claim and statement of claim via email and ordinary pre-paid post. Service was deemed to have occurred two business days after the email and post were sent. The court's decision was based on the corroboration of the address and the likelihood that the defendant was aware of the proceedings. The court also noted the precedent set by the Federal Court in Speedo Holdings BV v Evans, which supported the method of service used in this case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established