On Deck Capital Australia Pty Ltd v BBH Corp Pty Ltd
[2025] QDC 77
•13 June 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
On Deck Capital Australia Pty Ltd v BBH Corp Pty Ltd & anor [2025] QDC 77
PARTIES:
ON DECK CAPITAL AUSTRALIA PTY LTD
ACN 603 753 215(Plaintiff/Applicant)
v
BBH CORP PTY LTD
ACN 137 492 936(First Defendant/First Respondent)
and
LEA-ANNE TREVILLION
(Second Defendant/Second Respondent)
FILE NO/S:
3510 of 2024
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
13 June 2025
DELIVERED AT:
Brisbane
HEARING DATE:
11 June 2025 (on the papers)
JUDGES:
Heaton KC DCJ
ORDER:
1. The application is refused.
CATCHWORDS:
APPLICATION – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where the applicant sought an order dispensing with personal service of Claim and Statement of Claim – where the applicant sought an order authorising substituted service pursuant to r 116 of the Uniform Civil Procedure Rules 1999 – where process servers attended the respondent’s address on several occasions and received no response on the intercom – where the applicant sought an order authorising service by SMS, email, and post – whether it was impracticable to effect personal service in accordance with the Uniform Civil Procedure Rules 1999
COUNSEL:
Not applicable
SOLICITORS:
Kerrs for the Applicant
The application for substituted service (filed on 28 May 2025) is made pursuant to a Claim filed on 13 December 2024 seeking to recover money owed pursuant to a business loan agreement entered into by the defendants with the plaintiff. The first defendant is a company which is, in essence, the second defendant’s company.
Relevantly, on 20 January 2025, a representative of the plaintiff contacted the second defendant by telephone and had a conversation with her. During that call, the defendant acknowledged the outstanding debt to the plaintiff company and undertook to contact the company the next Friday (which was 24 January 2025) to discuss arrangements to settle the outstanding debt.
In the meantime, the plaintiff engaged the services of a process server who has attempted to serve the claim documents on the second defendant at her residential address at 152/8 Musgrave Street, West End, Brisbane.
Service was first attempted on 4 occasions on 22, 25 and 29 January 2025 by attendance at the address, which is a multi-storey, secure residential building. Access from the street is through an intercom connected to the apartment. On each occasion, there was no response to the intercom. Attendance was done both during business hours and outside business hours, including on Saturday 25 January 2025.
On 17 February 2025, the second defendant emailed the plaintiff company requesting a call from ‘Sonja’, the staff member with whom she had previous contact in relation to her outstanding debt. There is no evidence of a reply being sent by the plaintiff company to that email. No reasons are offered for that lack of response.
Service was again attempted on 21 and 23 February 2025. Again, that was done by attendance at the address both within and outside traditional business hours. No response was received when the intercom was used to attempt to connect to the defendant’s individual unit.
On 24 February 2025, the second defendant again emailed the plaintiff requesting contact to discuss her outstanding debt. Again, there is no evidence to suggest that the plaintiff responded to her email, and no reasons for it are provided. Her communication on 17 and 24 February 2025 does suggest that, at least up to that point in time, she was in contact with the plaintiff and willing to work on a solution to settle her financial obligation to the plaintiff.
Finally, on 26 February 2025, at 7.41pm, personal service was again attempted by attending at the defendant’s address and attempting to contact her by the intercom. Again, this was without success.
The application for substituted service was filed on 28 May 2025 without, it seems, further attempting to contact the defendant in the meantime despite the second defendant twice emailing the plaintiff and requesting a contact from the plaintiff company. The evidence therefore demonstrates that the plaintiff has access to a mobile telephone number for the second defendant, and an email address which have been successful in contacting the second defendant in the past. The evidence provided supports the conclusion that the second defendant is prepared to cooperate, to some extent at least, with the plaintiff in relation to the outstanding debt.
In particular, in the material relied upon to support the application for substituted service, I note that there is no evidence, for example, of the plaintiff making arrangements to meet with the second defendant at a convenient time for the purpose of serving the Claim Documents upon her personally. A failure to adhere to such an arrangement would, in my view, provide support for the conclusion that I am asked to draw, that is, that the defendant is seeking to deliberately frustrate efforts to personally serve her.
Whilst I acknowledge that personal service has been attempted on seven occasions at various times of the day, and on a weekend, in the circumstances of this case I am unable to conclude, on the basis of that lack of success alone, that the defendant is deliberately avoiding personal service.
Of further concern is that the evidence is now quite dated. There is no evidence of any attempt to serve or even contact the second defendant to make arrangements for personal service, since 26 February 2025, that is, over 3 months ago. I am therefore unable to conclude that all reasonable efforts to personally serve the claim documents have been exhausted, and that sending the documents to the last known mobile phone number or emailing to the previously used email address (which is a business email address) will likely bring the proceedings to the notice of the defendant.
The threshold condition in r 116 of the Uniform Civil Procedure Rules 1999 is that the Applicant (plaintiff) demonstrate that it is impracticable to serve the proceedings on the defendant personally, and secondly that the alternative means proposed will likely bring the proceedings to the notice of the defendants.
For these reasons, on the evidence provided, I am unable to conclude that it is impracticable for personal service to be effected.
Consequently, the application is refused.
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