Mundey v Westpac Banking Corporation

[2016] QCA 46

[2016] QCA 46

COURT OF APPEAL

MARGARET McMURDO P
MORRISON JA
MARTIN J

Appeal No 6652 of 2015
DC No 2728 of 2013

SHANE IAN MUNDEY
JODIE NYREE MUNDEY  Appellants

v

WESTPAC BANKING CORPORATION  Respondent

BRISBANE

TUESDAY, 1 MARCH 2016

JUDGMENT

THE PRESIDENT:  Justice Martin will deliver his reasons first.

MARTIN J:  In June 2015 summary judgment was entered in the District Court against the appellants, in favour of the respondent, and the appellants’ counter-claim was struck out.  The appellants seek an order that “the judgment against the appellant be dismissed”.  The appellants’ case is primarily based on the assertion that service of the application for summary judgment was not carried out in accordance with an order for substituted service.  Thus, it is said, the proceeding in the District Court was invalid.  The argument for the appellants is based upon a misunderstanding of the requirements under the Uniform Civil Procedure Rules for the service of applications.

Orders were made in the District Court in April and May 2014 for substituted service of the claim and statement of claim in this matter against the second and first appellants respectively by posting the documents to the appellants’ residential address.  On 9 May 2014, before the substituted service against the first appellant could be effected, the appellants filed a notice of intention to defend and a defence and counter-claim in the proceedings.  In that document, the appellants stated that their address for service was a post office box at Carindale.

On 15 May 2015, the respondent served on the appellants an application for summary judgment, which also sought an order striking out the counter-claim and the supporting affidavit, by posting those documents to the address for service nominated in the appellants’ notice of intention to defend.  The matter came on for hearing on 9 June 2015.  The respondent provided sworn evidence of service.  The appellants did not appear.

The appellants argue that the order for substituted service of the originating documents required that the application for summary judgment be served in the same way. That is not correct. That order allowed the respondent to achieve service of the claim and statement of claim otherwise than through personal service. Rule 112 subrule (3) of the Uniform Civil Procedure Rules allows service of documents such as the respondent’s application for summary judgment by posting it to the “relevant address” of the recipient.  The effect of rule 17 and rule 140 is that the “relevant address” is the address for service nominated by the appellants in their notice of intention to defend.  Thus, the respondent could and did effect service by posting the documents to that address.

Mr Mundey, in his argument today, said for the first time that he had not received the application.  There is, though, no sworn evidence before the Court that the documents were not received.  The appellants seek to argue that they do have a defence by saying that the respondent had breached a duty of care it was said to owe the guarantors.  That duty was not identified but appears to have been such that the bank should have delayed in selling one of the mortgaged properties so that the guarantors could effect repairs.  No part of the guarantee imposed such a duty.

The appellants and the mortgagor had also entered into a forbearance agreement, but that agreement was breached by a failure to repay an identified sum, and thus the appellants were also in default of that agreement.  The property which the appellants say was sold at an undervalue because the bank did not allow repairs to be effected was not sold by the bank.  It was sold by the receivers of the company for whom the appellants were the guarantors.

Nothing that was raised in argument today or set out in the defence and counter-claim supports a conclusion that there is any arguable defence to the claim.  No error has been demonstrated in the manner in which the learned primary Judge dealt with the application, and I would dismiss the appeal.

THE PRESIDENT:  I agree.

MORRISON JA:  I also agree.

THE PRESIDENT:  The order is the appeal is dismissed.  The appellant is to pay the respondent’s costs on the standard basis.