RHG Mortgage Corporation (Formerly Rams Mortgage Corporation Limited) v Pang

[2012] QDC 58

[2012] QDC 58

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 505 of 2011

RHG MORTGAGE CORPORATION LIMITED (FORMERLY RAMS MORTGAGE CORPORATION LIMITED)	Plaintiff
and
LOUIS SING KIM PANG AND AMY OI FUN SIU	Defendants

SOUTHPORT

..DATE 10/04/2012

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 116, s 119

Substituted service (by ordinary post) of claim and statement of claim seeking possession of mortgage premises, and secured moneys owning - documents to be posted to mortgage premises and to defendant's address - also text messages advising what the court had ordered were to be sent
HIS HONOUR:  This is an application for substituted service of
a claim for a mortgage debt and possession of the mortgaged
premises which are a unit in a highrise building in Southport.

The defendants have not been able to be served despite
multiple attendances by process servers at an address in
Baulkham Hills in New South Wales which they've indicated in
documents placed before the Court is their address.

The mortgage documents authorise the giving of communications
by post to the last address made known to the plaintiff in
23.5.  That would not ordinarily cover the serving of Court
proceedings for purposes of Rule 119, but clause 23.6 does.
It provides, "We may serve any document in a court action
(including a writ of summons, other originating process or
third or other party notice) on you by delivering it to the
property or by leaving it there.  This clause does not prevent
any other method of service."

There's an error in the helpful outline of submissions which
Mr Mayes was given leave to read and file in that it asserts
that service by this means on the New South Wales address
would be appropriate.

The authorities referred to in Mr Mayes' document indicate
there are two questions for the court in an application like
this under Rule 116, the first is whether it's impracticable
to serve proceedings in the ordinary way by personal service,
which is usually tested by repeated attempts of the kind that
have been made here.  It rather appears that on at least some
of the process servers' visits there has been a person or
persons inside the premises in Baulkham Hills who will not
come to the door to receive documents.

I think that the plaintiff has surmounted that hurdle.

The other requirement is to satisfy the court that it's
reasonably likely that the means of service proposed in the
alternative will bring the proceedings to the defendants'
attention.

I don't know that the court should be quite as robust as the
plaintiff's deponents have been in making the assumption that the
defendants are already aware of the proceedings.

Mr Mayes has been invited to prepare an order which directs
service by ordinary post on both the address of the mortgaged
property and the Baulkham Hills address.

Experience suggests that use of registered post is likely to
result in defendants doing what they can to avoid being placed
in a position of receiving court process.

In addition to that recourse to the post, in my opinion, the court ought to require
the plaintiff to make use of the mobile telephone numbers
which it has for each of the defendants by sending a text
message which would advise that the District Court of
Queensland at Southport has today authorised service of a
claim for possession of the mortgaged property and the amount
of the mortgage debt by ordinary post of the court documents
to the two addresses indicated.  The notice ought to invite
the addressees to obtain copies of Court documents, if they
require them, by application to the plaintiff's solicitors and
I think ought to give some intimation that the plaintiff will
be in a position to proceed as on default if no notice of
intention to defend is filed within 28 days of service.

The draft proposed by Mr Mayes already contains the necessary
stipulation that what is served ought to include a copy of the
court's order.

The court will defer initialling an order until the draft
provided by Mr Mayes, which is otherwise acceptable, has been
amended to deal with the additional requirements indicated
above.

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