Pepper Finance Corporation Ltd v Cain

[2013] QDC 236

[2013] QDC 236

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1770 of 2013

PEPPER FINANCE CORPORATION LIMITED       Plaintiff

and

LEE CAIN
and JUSTIN ANTHONY CAIN  Defendants

BRISBANE

MONDAY, 22 JULY 2013

ORDER

.

HIS HONOUR:   This is an application by the plaintiff proposed to be determined without an oral hearing seeking that personal service of the claim and statement of claim be dispensed with and other arrangements authorised for service of them.  The claim is one by a mortgagee for a sum in excess of $385,000 allegedly due under a loan secured by a mortgage over real property over residential premises at 117 Bennetts Road, Norman Park.  On all information available, that is where the defendants live.  A search of the telephone directory tends to confirm that, as does information obtained by process servers from neighbours and the observation by one of them, Mr Ramage, of mail in the letterbox clearly visible as addressed to the defendant Lee Cain.

Ordinarily one would not expect it to be impracticable, to allude to the relevant test, to effect personal service on defendants at such premises.  However Mr Ramage has failed to achieve that on two attendances and Mr Williams on a further six.  On occasions it appears from circumstances such as a particular vehicle being parked in the driveway and light and noises and a television set turned on inside that there are persons present in the premises seeking to avoid service the threat of which they are apprised of by reason of process servers’ calling cards being left.  The mortgage documents unsurprisingly give the address as that of the defendant mortgagors.

In the circumstances, I consider than an order ought to be made as sought but with an addition to the proposed means of service by post together with a copy of this order and by delivery of the same items at the address.  I propose that it be ordered, to take advantage of the plaintiff’s knowledge of mobile telephone numbers connected with the defendants, that a third component of substituted service be involved namely “(C) Sending text messages advising that service by post and delivery to 117 Bennetts Road Norman Park of District Court claim D1770 of 2013 and statement of claim for possession of those premises has been authorised by the court to 0146258625 and 0416486274.”  Subject to that change made to the draft proffered as required by the rules there will be an order in terms of the initialled draft.

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