Salter v Towler
[2012] QDC 77
•10 April 2012
[2012] QDC 77
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 529 of 2011
| LYN ELIZABETH SALTER | Plaintiff |
| and | |
| PAUL ANDREW TOWLER | Defendant |
SOUTHPORT
..DATE 10/04/2012
ORDER
CATCHWORDS
Uniform Civil Procedure Rules r 116
Substituted service of claim and statement of claim allowed - defendant resides in rented premises in a gated community, whose rules render access by process servers extremely difficult - as well as service by post, service upon the letting agents was required
HIS HONOUR: The court makes an order in terms of an initialled draft which provides that:-
Pursuant to rule 116 of the Uniform Civil Procedure Rules 1999, personal service of claim and statement of claim, number 529 of 2011, be dispensed with.
Service of claim and statement of claim, number 529 of 2011, be effected on the defendant by their being forwarded by ordinary prepaid post to the defendant at 3015 Hillside Walk, Sanctuary Cove, in the State of Queensland, together with a copy of this order.
Copies of the claim and statement of claim and of this order also be forwarded by ordinary prepaid post to McGrath Ltd, 12-14 Albert Avenue, Broadbeach, Qld 4218, as property manager of the address in paragraph (2), marked "For the attention of Alice Vachre and Chantelle Vlastuin", together with a covering letter requesting (a) the forwarding of the documents to the defendant; and (b) confirmation that the action requested in (b) has occurred.
Service be deemed to be effective seven days after the posting of the claim and statement of claim with a copy of this order as required in paragraphs 2 and 3.
The plaintiff's costs of and incidental to this application be her costs of cause.
The claim is a substantial one for almost $300,000, being amount of deficiency on the resale of premises at Coomera which the plaintiff alleges the defendant had bound himself to purchase from her. His address as revealed to the plaintiff in the contractual documents was one in Western Australia. Attempts to serve the proceeding there elicited the information that he had sold the Western Australia premises and moved to Queensland.
He has been located at the address at Sanctuary Cove, a closed community which the court is told will permit access for purposes of serving court process only to a particular identified court bailiff. That officer has made a number of attempts to effect service after being admitted for the purpose. It rather appears that on occasions at least the defendant is present at the residence but bent on declining to make himself available for service.
As to whether or not he is aware of the proceeding - which is perhaps something less clear than in other contexts such as the common one for the courts these days in which a mortgagee who gets into default faces a claim for the moneys owing and also possession of premises it is not necessarily clear that the defendant is aware of the proceeding or even of the likelihood of it. Mr Eustace could not tell the court that there had been any letter of demand before action sent out.
What I've just said is qualified by information placed before the court that the defendant has been located. The company which act as property managers for the relevant address at Sanctuary Cove, which has been leased to the defendant until September this year, confirm that he is there. I have been requested by the plaintiff's solicitors to seek to inform the defendant, whom they confirm as being located in the premises, for example on the occasion of a landlord's inspection, that it's desired to serve and process on the defendant. Perhaps that explains his proving somewhat elusive when the bailiff attends.
In applications of the present kind, the Court must be satisfied of two things: first, that service is impracticable, which on the authorities mentioned in Mr Eustace's outline of submissions, means impracticable within a reasonable time frame, and next that the means of service ordered are reasonably likely to bring proceedings to the defendant's attention.
The restrictive rules implemented by Sanctuary Cove in the circumstances assist the plaintiff to prove the impracticality aspect. As it happens, they also offer a certain amount of assurance at what's proposed will be effective on the basis that the property agents are involved, over and above what the plaintiff had proposed which was simply service by ordinary prepaid post. Registered post is usually avoided in contexts such as the present, given general experience that defendants eschew collecting registered mail in such circumstances. It remains to be seen what cooperation McGrath Ltd, who would seem to have been considerably cooperative to this point, will furnish in the future.
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