Queensland Building Services Authority v Creek Constructions Pty Ltd & Lazar

[2011] QDC 196

[2011] QDC 196

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3886 of 2010

QUEENSLAND BUILDING SERVICES AUTHORITY

Plaintiff

and

CREEK CONSTRUCTIONS PTY LTD

and

GABRIELA LAZAR

Defendants

BRISBANE

..DATE 13/07/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116

Application for substituted service of claim and statement of claim seeking to hold director responsible for cost of rectifications by plaintiff authority of her company's defective building work - on first hearing date, court considered 4 attempts at service at defendant's residence insufficient - 10 further attempts made - substituted service ordered - costs of the first hearing refused."
HIS HONOUR:  The court makes an order in terms of an initialled draft permitting substituted service of the claim and statement of claim to be accompanied by a copy of the order on the second defendant at premises which appear to be her residence on the basis of title and company searches, a conclusion which is supported by information obtained from other residents of the premises (with the notable exception of the second defendant's husband, who has apparently stated that she was not there and was living elsewhere) and by neighbours.

The court has noticed the discrepancy between the first name of the second defendant in the proceedings, which is Gabriela, and that of the director of the company, not the first defendant, which owns the relevant premises, whose first name is given as Gabriel.

This is the second hearing of the application. Another Judge declined to make an order on the 29th of April 2011, Mr Stretton says on the basis that his Honour considered four attempts by the process server, Mr St Clare, to effect service at the premises seemed to him insufficient. He was not satisfied that service as required by the UCPR was not practicable.

Since then there's additional information provided to show‑‑‑‑‑

...

HIS HONOUR:  ‑‑‑‑‑a further 10 attendances at the premises by Mr St Clare, a professional process server.  He has had no more success than he had had as at the end of April.  The court, I think, ought to take a practical approach.  The experience of the court indicates that recourse to substituted service orders typically works wonders in flushing out a defendant or respondent who has proved elusive.

So far as the merits are relevant, it's the kind of claim that ought to be encouraged.  The plaintiff is seeking to enforce its statutory entitlement to contribution from a director of a building company whose shoddy work it has been obliged to rectify.

...

HIS HONOUR:  I might say that I've added to paragraph 3 of the order proposed by Mr Stretton, which requires the second defendant to pay the plaintiff's costs, the words "save for the costs of the hearing the 29th of April 2011."  It seems to me unsound to order the respondent to pay the costs of a hearing, the outcome of which was that the plaintiff failed to make a sufficient case.

...

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