H v B & D

[2005] QDC 265

[2005] QDC 265

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD 1287 of 2005

H

Applicant

and

B

and

D

First Respondent

Second Respondent

BRISBANE

..DATE 26/08/2005

ORDER

CATCHWORDS: Property Law Act s 347 does not authorize service of originating court process - order for substituted service

of Part 19 proceedings made on respondent former de facto spouse and on a transferee of the spouse's former joint real property

HIS HONOUR: This is an unusually complicated application under Section 286 of the Property Law Act 1974 which gives rise to additional extraneous issues. According to the applicant's affidavit, there was a de facto relationship between her and the first respondent which lasted long enough and ended late enough to justify the application which was filed on the 14th of April 2005.

The applicant says that trustingly she allowed the first respondent to negotiate with the second respondent for sale of the property at … Street, Albany Creek where she and the first respondent had lived, having purchased it together.  Without paying much attention, she signed documents which transferred it to the second respondent.  She has received no part of the proceeds.  She has been excluded from the premises and from access to and enjoyment of a lot of her chattels which are inside.

The application sought adjustment of "the interests of the applicant and the first and second respondents" and perhaps optimistically an order that the respondents "hold any interest in any property of which she is a registered owner  ... on constructive trust or a resulting trust for the applicant in the proportions of 100 per cent to the applicant and zero per cent to the first and second respondents."

It would rather seem that there may now be no such property.  The Court does not rely on this since it's not formally placed in evidence, but Mr O'Neill has explained the apparently surprising events by reference to the applicant's knowing the two respondents well, having worked for them in a security business which they conduct.

It's plain, particularly from the affidavit of Mr Twina
that the respondents have been avoiding service.  The application came on before his Honour Judge Botting on the 16th of August 2005 when Mr O'Neill appeared.  He has the impression that the Court either approved such "service" as the efforts of process server had achieved in various attempts or indicated that a substituted service order would be appropriate.  Unfortunately, there is no order available on search of the file to establish either.

The only record of any order is the Court's order sheet which records leave to read and file an affidavit of K.T. Douglas, being given by his Honour and the matter being adjourned to
10 a.m. today.  The judge is, unfortunately, unavailable today so that his recollections can be sought, but inquiries of his associate reveal that there's nothing more in his notebook to support Mr O'Neill's understanding.

In the circumstances, the Court has to proceed on the basis that the respondents have not been served by any of the means which have been adopted which include Laurie Parker's having left documents intended to be served in the letter-boxes at … Street, Albany Creek in the case of the first respondent and … Street, Wooloowin in the case of the second respondent.
The main consequence of the appearance before Judge Botting has been, in accordance with what Mr O'Neill says were his Honour's requirements, the filing of an amended application on the 24th of August 2004.  The Judge, it is said, was concerned that there was no identification of the real property that is the main subject of the proceeding in circumstances where it was a concern that the Court might have been asked to make orders about property whose ownership and provenance was not clear.

The amended application identifies the property and has sought $85,000, representing the applicant's asserted interest in it,  alternatively, a declaration of a trust in respect of that property in her favour, "in a proportion to be determined by the Court."  The application also seeks $20,000 in respect of the chattels from which she's been excluded and "$50,000 compensation for pain, mental distress, inconvenience and humiliation" and indemnity costs.

It remains to be seen to what extent the present application is a suitable form of proceeding in respect of all of that relief.

On the date of filing, the amended originating application was sent registered post to the respondents.  It states a return date of 10 a.m. today.  The service period is, of course, too short, even though if Australia Post performed efficiently the amended originating application might have come to the respondents' attention yesterday; neither of them has appeared when their names have been called today.

Mr O'Neill has submitted that Section 347 of the Property Law Act 1974 authorises service by post. He has cited no authority to show that Section 347 would apply to court process. It has plenty of work to do in respect of the various kinds of notice provided for in the Act. In the absence of authority requiring the conclusion, I would not be prepared to accept that Section 347 applies to service of originating process from a court. As I have said, there is no order of the Court dispensing with the personal service ordinarily required.

Although Mr O'Neill may have been hoping to obtain directions today to advance the matter in terms of the relevant practice directions, I do not think that could be done.  What the Court ought to do is regularise the service situation.  That seems absurd from some points of view, given that on the material before the Court, the respondents are perfectly well aware of the proceedings.

...

HIS HONOUR:  The applicant deposes to telephone conversations she has had with the respondent, particularly in June 2005, indicating he is seeing the process servers attending at the residence intent on serving him.  That happened early in the month and late in the month, she says he told her "you would have to do better because I do not live there any more".  So far as the second respondent is concerned, Mr Twina's affidavit includes in Exhibit A, a fax apparently emanating from Mr D and sent to the applicant's solicitors responding to an earlier fax sent by them which may well be one of the 18th of March 2005, also in Exhibit A, addressed to the first respondent.

The second respondent's fax reads:

"I would like to put your client on notice that I am the owner of the property situated at … Street, Albany Creek.  Your client will be asked to vacate the premises within 24 hours.  I have advised the police that I will be changing the locks and if your client remains or re-enters the property, she will be charged with trespass."

Much more significantly, Kerry Therese Douglas, a principal of the solicitors who knows the second respondent saw him on or about the 10th of August.  She says and I quote:

"I had a conversation with [the second respondent] and discovered that he was involved in one of the matters my firm was handling.  Mr...advised me that he was aware of the Court date on 16 August 2005 but he had not been served with the documents.  I suggested to Mr...to attend my office...to obtain a copy of the documents."

Needless to say, the gentleman did not attend.

Without expressing any view about the merits of the proceedings, I think it is appropriate for the Court to make an order which will advance things.
I propose the following:  order that the applicant may serve the respondents with the amended application and all affidavits and other material intended to be relied on in support of it by posting the same by pre-paid registered post, together with a copy of this order, to (a) the first respondent at … Street, Albany Creek, Queensland 4035, (b) the second respondent at … Street, Wooloowin, Queensland 4030; adjourn the application to the 16th of September 2005, costs reserved.

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