Permanent Mortgages Pty Ltd v McKenna

[2009] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Permanent Mortgages Pty Ltd v McKenna & another [2009] QSC 22

PARTIES:

PERMANENT MORTGAGES PTY LTD
ACN 097 176 362
(plaintiff/applicant)
v
SHANE PATRICK MCKENNA
(first defendant/respondent)
and
SONIA ELIZABETH BEGLEY
(second defendant/respondent)

FILE NO/S:

10648 of 2008

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

19 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Application on papers

JUDGE:

Fryberg J

ORDER:

1)   Service of the claim herein upon the defendant Sonia Elizabeth Begley be effected by posting copies thereof by ordinary post, together with copies of this order, addressed to her at each of the following addresses:

           (a) 14 Bonavista Crescent, Doonan Qld 4562; and

(b) 53 Driftwood Drive, Castaways Qld 4567.           

2)   Such service be deemed to be effected two business days after the posting of the copies.

3)   The costs of the plaintiff of and incidental to this application be the plaintiff’s costs in the cause.

CATCHWORDS:

Procedure – Supreme Court procedure – Queensland – Procedure under rules of court – Service – Substituted service – Documents of originating processes – By ordinary post

Uniform Civil Procedure Rules r 116

SOLICITORS:

Plaintiff: Dunstan Hardcastle Solicitors and Attorneys
Ex parte

1. FRYBERG J:  On 22 October 2008 the applicant filed a claim and statement of claim to recover possession of land pursuant to an alleged mortgage given by the respondents on or about 9 October 2007.  Personal service of those documents was effected on the first defendant at 14 Bonavista Crescent, Doonan, 4562, the secured property, by dropping them on the ground at his feet when he refused to accept them.  Default judgment was entered against him on in 11 December 2008.

1. At the time the first defendant was served, the process server had with him a set of documents for the second defendant.  He subsequently described what happened:

“At the time of service I spoke with a male person who I know is the male defendant, Shane Patrick McKenna. I said, ‘I am a Court Bailiff and I have some court papers for Sonia Elizabeth Begley.’ He said, ‘She is inside and will not be coming down here, and I am escorting you off my property.’ I said, ‘I still have to give Sonia these documents.’ He said, ‘You are not allowed on my property. I know my rights.’ I said, ‘I am a Court Bailiff and I have every right to be here.’ We arrived at the boundary of his property and he said to me, ‘You are off my property, don’t come back or the Aboriginal Legal Office and my Solicitors will hit you with a $10,000 writ.’ I said, ‘If Sonia refuses to come and get them I will drop them here in front of you.’ He said, ‘Get going, I will not take them.’ I then dropped the documents at his feet and said, ‘Sonia Elizabeth Begley has been served with a Supreme Court Claim and Statement of Claim on behalf of Permanent Mortgages Pty Limited.’”

He also left the documents which he had for service on the second defendant.

1. Thereafter the process server made four attempts to serve the documents on the second defendant in December 2008 and January 2009.  He was unable to locate anyone at the secured property on any of those occasions.  On the last occasion he found a chain across the driveway inhibiting access to the property, with the following notice attached to it:

1. The address of the secured property is the home address of the defendants, as appears from the application for finance which they signed and from the second defendant’s driver's licence, a copy of which was obtained by the applicant.  However in the former, the defendants gave the address “53 Driftwood Drive, Castaway 4567” as their postal address.

1. Rule 116 of the Uniform Civil Procedure Rules provides:

“Rule 116. Substituted service

(1)   If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.

(2)   The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.

(3)   The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.”

1. I have no doubt that the second defendant is attempting to evade service.  I am satisfied that it is impracticable to serve those documents on her in the way required by the rules.

1. Moreover I am also satisfied that she is aware of the claim and probably has the copy of the claim and statement of claim which was left for her by the process server.  One could almost contemplate deeming what has occurred sufficient service.  It is unnecessary to consider whether such a course would be appropriate, since the applicant seeks only an order for substituted service.

1. I am satisfied that service by mail addressed to the second defendant at the two addresses referred to above is likely to be effective in bringing the claim to her notice.  I see no need for the use of registered post.

Order

1. The order of the court should be:

1.          Service of the claim herein upon the defendant Sonia Elizabeth Begley be effected by posting copies thereof by ordinary post, together with copies of this order, addressed to her at each of the following addresses:

(a) 14 Bonavista Crescent, Doonan Qld 4562; and

(b) 53 Driftwood Drive, Castaways Qld 4567.

2.          Such service be deemed to be effected two business days after the posting of the copies.

3.          The costs of the plaintiff of and incidental to this application be the plaintiff’s costs in the cause.