Perpetual Limited v Rush

Perpetual Limited brought an action against the first and second defendants seeking payment of a debt and recovery of possession of premises. The second defendant was served with the Claim and Statement of Claim via substituted service, pursuant to rule 116 of the Uniform Civil Procedure Rules 1999 (Qld), after the plaintiff was unable to locate them. The second defendant's whereabouts were unknown, and there was evidence suggesting they were suffering from dementia. The plaintiff applied for an order under rule 116 to allow substituted service, arguing that personal service was impracticable. The court needed to determine whether the plaintiff had demonstrated that personal service on the second defendant was impracticable, and if the substituted service was appropriate under the circumstances.

The court considered whether the plaintiff had shown that personal service on the second defendant was impracticable. It noted that the second defendant was residing at an undisclosed location and was suffering from dementia, which could impact their ability to manage their affairs. The court examined the evidence provided by the plaintiff and found that while it was difficult to locate the second defendant, there was no clear evidence that personal service was impossible. The court held that the plaintiff had not demonstrated that personal service was impracticable, and therefore, the substituted service was not justified under the circumstances. The court concluded that the application for substituted service should be dismissed.

The court's reasoning was based on the requirement under rule 116 that the applicant must show that personal service is impracticable. The court found that the plaintiff had not provided sufficient evidence to support this claim. The court also considered the provisions of rule 109, which requires that a document that must be served personally on a person with impaired capacity must be served instead on the person’s litigation guardian or a person who is entitled to be that person’s litigation guardian. The court determined that the plaintiff had not followed this requirement, further supporting the dismissal of the application.

The court dismissed the plaintiff's application for an order allowing substituted service of the Claim and Statement of Claim on the second defendant. The court held that the plaintiff had not shown that personal service was impracticable and had not followed the requirements of rule 109. The plaintiff was required to effect personal service on the second defendant or seek the appointment of a litigation guardian before proceeding with the action.