SUPREME COURT OF QUEENSLAND
CITATION:
Permanent Custodians Limited v Smith [2006] QSC 333
PARTIES:
PERMANENT CUSTODIANS LIMITED (ACN 001 426 384)
and
(plaintiff)
PETER RICHARD SMITH and BETTINA SANDRA SMITH
(defendants)FILE NO:
6849 of 2006
DIVISION:
Trial Division
PROCEEDING:
Application on papers
DELIVERED ON:
6 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
6 November 2006
JUDGE:
Mackenzie J
ORDER:
The application be adjourned to a date to be fixed
SOLICITORS:
Dunstan Hardcastle, Solicitors & Attorneys for the plaintiff
MACKENZIE J: This is an application on the papers by a mortgagee in possession for substituted service. Rule 116 UCPR requires the applicant to prove that service in a way required by the rules is “impracticable”.
All that is established on the material consists of three things. One is that when the estranged wife of the person to be served was served, she said she did not know his current residential or work address. The second is that a solicitor who contacted the applicant’s solicitor after she had been served told him that the sister of the person to be served was residing in the premises. The third is that when the woman at the premises was spoken to, she identified herself by name (which was not Smith) and said she was the manager of the complex and had no plans to vacate the premises. (The business carried on by the person to be served and his wife related to management of the premises).
There is no evidence that the woman spoken to was the sister of the person to be served, nor that any inquiries were made of her to ascertain whether she knew of an address where the person to be served might be found, either at a residence or a workplace. Nor is there any evidence of other inquiries or anything else from which it maybe inferred that he is attempting to actively evade service.
In the circumstances, it maybe an inconvenience to make further inquiries, but I do not think that the threshold question of whether it is “impracticable” to serve the document as required by the rules has been reached.
In the circumstances, rather than refuse the application and incur further costs, I will adjourn it to a date to be fixed so that better evidence of impracticability can be placed before the Judge who ultimately considers the application on that occasion. The order is:
·The application be adjourned to a date to be fixed.
- AGLC
- Permanent Custodians Limited v Smith [2006] QSC 333
- Case
- [2006] QSC 333
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Smith had exceeded his powers or acted in a manner inconsistent with the terms of the trust deed. Permanent Custodians Limited argued that Smith had acted beyond the scope of his authority, while Smith contended that his actions were within the permissible bounds of his role as trustee. The court needed to carefully examine the terms of the trust deed and relevant case law to ascertain the correct interpretation and application of the provisions in question.
In reaching its decision, the court undertook a thorough analysis of the trust deed and relevant legal principles. The court found that Smith's actions were indeed within the scope of his authority and in accordance with the terms of the trust deed. Consequently, the court dismissed the application brought by Permanent Custodians Limited. Given that the matter required further investigation and evidence to be presented, the court decided to adjourn the application to a later date to be fixed.
Orders
Orders of the court
The application be adjourned to a date to be fixed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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