Queensland Building Services Authority v Stephens & Baker

[2011] QDC 199

[2011] QDC 199

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 263 of 2011

QUEENSLAND BUILDING SERVICES AUTHORITY	Plaintiff
and
RUSS DAVID STEPHENS and MICHAEL ROY BAKER	Defendants

BRISBANE

..DATE 15/07/2011

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 105, r 106, r 117

Service declared sufficient where defendant's wife accepted claim and statement of claim from process server, advising she had his authority to do so - Registrar declined to enter default judgment because there was no personal service - defendant confirmed to process server that the documents had been received
HIS HONOUR:  The court makes an order in terms of the initialled draft which provides that:

(1) Pursuant to rule 117 of the Uniform Civil Procedure Rules 1999, the claim and statement of claim filed 28 January 2011 in these proceedings be taken to have been served on the first defendant on 25 March 2011.

(2) The plaintiff send a copy of this order by pre-paid post addressed to the first defendant at 19 Freya Court, Newport, Queensland 4020.

(3) The plaintiff have leave to proceed against the first defendant in default of filing of a notice of intention to defend 30 days after such posting if a notice of intention to defend has not been filed within that time.

(4) The costs of and incidental to this application be reserved.

What the affidavit material before the court shows is that the process server on 8 March 2011 left the claim and statement of claim with an adult female person, assumed to be his wife, who advised she could not say when Mr Stephens would be available to accept service but that she had his authority to accept any documents on his behalf.  The documents were handed over.

The process server's affidavit of service filed 6 April 2011 deposes to confirming with the first defendant in a telephone conversation initiated by the process server that he had received the documents.  That affidavit has been amplified by another filed on 23 May 2011 which places a date and time on that conversation with the first defendant, namely, Friday, 25 March 2011 at 3.40 p.m.

This application is made because the Deputy Registrar refused an application to enter default judgment on the basis not only that the application was considered premature but because "notwithstanding the defendant appears to have received the documents, service is not in accordance with the rules 105 and 106 UCPR. There is no order for substituted service." The same difficulty in the way of ordering default judgment was the basis for refusing it again on 24 May 2011 and I quote from the endorsement, "As above, documents have not been personally served."

The court has no difficulty in being satisfied on the evidence before it that the claim and statement of claim came into the first defendant's possession on 25 March 2011.  The difficulty the court feels is that, in the circumstances, the first defendant may not appreciate that service on him has occurred.  Putting it another way, he may be something of a bush lawyer taking the line that, for all that he knows about the proceedings, they are yet to be served on him.

It is for that reason that it seems to me essential that he be informed that the court has declared him to be served and given a suitable time to protect his interests, should he want to do that, by filing a notice of intention to defend and defence.  Ms De Luchi does not suggest that any great prejudice to her client would flow from the delay involved in allowing him, in effect, the usual 28 days from his becoming aware that he faces a serious proceeding that might lead to a judgment elapses.

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