ING Bank (Australia) Limited v Clark

DISTRICT COURT OF QUEENSLAND

CITATION:

ING Bank (Australia) Limited v Clark [2014] QDC 74

 PARTIES:

ING BANK (AUSTRALIA) LIMITED

ACN 000 893 292

(plaintiff/applicant)

v

TODD MATTHEW CLARK

(defendant/respondent)

FILE NO/S:

4188/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2014 (On the papers)

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.      The Plaintiff’s application filed 20 March 2014 is dismissed.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the whereabouts of the defendant in a proceeding are unknown – whether personal service is impracticable – where substituted service is applied for – where the application seeks substituted service by posting a copy to the defendant at his property – where the defendant does not reside at that property – where the application seeks substituted service by posting a copy to the defendant at his property, care of a person renting that property – where that person is unsure of the defendant’s whereabouts – where the application seeks substituted service by email – where there is no evidence establishing the suggested email is the defendant’s email address – where the application seeks substituted service by placing advertisements in the area where the defendant’s property is – where the application seeks substituted service by advertising in a newspaper where the defendant is believed to work – whether these methods would bring the proceeding to the knowledge of the defendant
Uniform Civil Procedure Rules 1999 (Qld), r 105, r 106,
r 116, r 116(1), r 137, r 283.

Churchill & Co v Lonberg [1941] 3 AER 137
Hilaire v Harvie (1951) 68 WN (NSW) 61
Kendall v Sweeney [2002] QSC 404
Members Australia Credit Union Ltd v Cruickshank [2011]  QDC 89
Miscamble v Phillips & Hoeflich (No. 2)
Porter v Freudenberg [1915] 1 KB 857

SOLICITORS:

Gadens Lawyers on behalf of the applicant.

No appearance for the respondent.

1. The applicant is the plaintiff in proceedings commenced by claim on 31 October 2013.  In its substantive proceedings, the plaintiff claims, as mortgagee, for recovery of property situated at 1 Morgan Place, Emerald (‘the property’) in the state of Queensland.  The plaintiff also claims the sums of $104,236.94 plus interest and $480,268.79 plus interest said to be owing pursuant to two loan agreements and mortgages.

1. The plaintiff has been unable to effect personal service of the Claim and Statement of Claim. It seeks an order for substituted service pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).

1. Before the court can order substituted service it must first be established that personal service is impracticable.[1]  An affidavit of Stephanie Michelle Brown has been filed in support of the application.  Ms Brown deposes to the various steps which have been taken in an attempt to effect personal service.  Those attempts have included licensed commercial agents attending at the property…