R & G Steelfixing Pty Ltd (in liquidation) v Balatinacz

[2012] QDC 327

[2012] QDC 327

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3342 of 2012

R & G STEELFIXING PTY LTD
(IN LIQUIDATION)

Plaintiff

and

ATTILA GRAHAM BALATINACZ

and

RICHARD JAMES BRENSON

Defendants

BRISBANE

..DATE 19/10/2012

ORDER

CATCHWORDS

Succession Act 1981 s 41

Applications by adult sons - whether court has jurisdiction to give effect to a compromise in their separate proceedings.

HIS HONOUR:  The plaintiffs seek an order for substituted service of the statement of claim in respect of the first defendant.  So far as the second defendant is concerned service has been effected and, indeed, default judgment was entered by the Deputy Registrar on 5th of October 2012 for $313,917.80, which included interest to that day and costs.

The first plaintiff is a company in liquidation and the second plaintiff is the liquidator.

The defendants were, and it's said still are, directors.  The claim is that they permitted the company to incur liabilities while it was insolvent, contravening section 558G(2) of the Corporations Act in circumstances rendering them liable to have to pay to the company the judgment amount pursuant to section 588M.

There is a lot of material establishing the first defendant's address.  For example, a title search of a residential site records him as its owner.  Multiple attempts to effect service have been unsuccessful.  There is a padlocked gate which cannot be passed and furthermore, according to the affidavit, a fierce dog.  Information from not only neighbours but also another resident of the subject property confirms that the first defendant is indeed resident at 85 Pullen Road, Everton Park.

It's appropriate to order substituted service by the means suggested by the applicants given that personal service is established to be impracticable.

What is proposed is service of the claim, to which the statement of claim must be attached together with a copy of this order, by posting pre-paid ordinary post and in a separate exercise by affixing a sealed envelope addressed to the first defendant containing that material to the front gate of the property. 

Both courses must be implemented.  It's an unusually strong application in my experience.  A male person has been observed at the premises, who runs away when the process server approaches.  The woman occupying the premises has advised the process server that the first defendant has received his calling cards and been advised by the second defendant of the impending service of the claim.

Order as per initialled draft.

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