Queensland Building Service Authority v Total Building Group Pty Ltd

[2011] QDC 91

[2011] QDC 91

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3938 of 2010

QUEENSLAND BUILDING SERVICE AUTHORITY

Plaintiff

and

TOTAL BUILDING GROUP PTY LTD
and
FRANK RAYMOND SHERRED

First Defendant

Second Defendant

BRISBANE

..DATE 18/05/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116

Substituted service of claim and statement of claim where male occupant of premises believed to be the defendant's residence repeatedly ignored the process server's efforts to attract his attention

HIS HONOUR:  The court makes an order in terms of the initialled draft which authorises substituted service of the claim and statement of claim (to be accompanied by a copy of the court's order) on the second defendant at 62 Cross Street, Deception Bay.

The process server has attended that address on the 17th of January 2011, the 30th of January 2011, 2nd of February 2011, 5th of February 2011, 8th of February 2011 and 10th of February 2011.  In respect of the last three dates, there's been a correction by subsequent affidavit of references to January 2011 which were in error and in one case exacerbated, although not concerningly exacerbated, by a reference to the year 2001.  The process server’s story would have been confusing indeed without the correction.

On all occasions, except the first and penultimate one, the process server noticed a male person in the premises - on some occasions with a female person sitting with him.  The male person, going on the affidavit, studiously avoided taking any notice of the process server's knocks and appears to be avoiding service.  That may be unsurprising, given the nature of the claim.  The plaintiff wants to recover from him the cost of attending to unsatisfactory building work carried out by his company for which the first plaintiff came under responsibility.

...

HIS HONOUR:  The uncertainty in the situation is whether 62 Cross Street, Deception Bay is the correct address for the second defendant.

It's clear that the plaintiff's solicitors have information to that effect because it's where the process server was sent.  His first affidavit deposes that when no-one was found at home on the first attendance, neighbours confirmed that the defendant resided at that address with a woman.  He was thought to be marooned by the floods in North Queensland on that day.  Telephone contact was then made, according to the process server, in which the defendant advised he would be returning home and should be there after about four days, confirming that he'd been marooned by the floods.

Although it might be of additional comfort to the court to have some information linking the second defendant with that particular address, I think there is enough in the circumstances and therefore make the order.

The proffered draft has been amended to deem service effected two business days after carrying out of the steps required, rather than two days.

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