Scott v Colwell - [2016] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

Scott & Ors v Colwell & Anor [2016] QCA 39

PARTIES:

PETER DOUGLASS SCOTT
(first appellant)
CATHERINE ANNE SCOTT
(second appellant)
RHYS DAVID ANDREW SCOTT
(third appellant)
v
WILLIAM MARTIN COLWELL AND TIMOTHY JAMES MICHAEL as receivers and managers of Property described as LOTS 1 AND 2 ON SP 137409 OF STANLEY PARISH OF KEDRON
(respondent)

FILE NO/S:

Appeal No 8369 of 2015
SC No 6758 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 13 August 2015

DELIVERED ON:

26 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2016

JUDGES:

Gotterson and Philippides JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. Appellants to pay the respondent’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where the appellants are the registered proprietors of land held by the respondents as receivers and managers – where the respondents commenced proceedings by way of originating application in the Supreme Court of Queensland on 10 July 2015, seeking orders for possession of the land and other relief – where orders for substituted service were made on 22 July 2015 – where the hearing of the originating application was adjourned until 13 August 2015, upon which date there were no appearances for the appellants when the matter was called – where affidavits were read before a judge in the applications list establishing service of the originating application in accordance with the modes of service for which the substituted service order provided – where the learned applications judge made orders for recovery of possession and a further order that the appellants pay the respondent’s costs of the proceeding – where the appellants filed a notice of appeal on 24 August 2015 against the orders made – whether the learned applications judge was correct in making such orders

Uniform Civil Procedure Rules 1999 (Qld), r 116

COUNSEL:

The appellants appeared on their own behalf
G D Sheahan for the respondent

SOLICITORS:

The appellants appeared on their own behalf
Clayton Utz for the respondent

GOTTERSON JA: On 4 December 2012, the National Australia Bank Ltd (“the Bank”) appointed the respondents to this appeal, William Martin Colwell and Timothy James Michael as receivers and managers to land described as Lots 1 and 2 on SP137409 situated at 9 Valente Close, Kedron, Brisbane (“the mortgaged land”).[1] Peter Douglass Scott, Catherine Anne Scott and Rhys David Andrew Scott, the appellants, are the registered proprietors of the mortgaged land.[2]
[1]Deed of Appointment: AB161-163.
[2]AB166-168.
On 10 July 2015, the respondents commenced proceedings in the Supreme Court of Queensland against the appellants by way of originating application. They sought orders for possession of the mortgaged land and other relief. Later, on the respondent’s application, a judge of the trial division made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 39
Decision Date: 26 February 2016

CaseChat Overview and Summary

The case of Scott v Colwell involved the appellants, who were the registered proprietors of certain land, being held by the respondents as receivers and managers. The respondents initiated proceedings by filing an originating application in the Supreme Court of Queensland on 10 July 2015. Their application sought orders for the possession of the land, along with other relief. Following the application, on 22 July 2015, orders for substituted service were granted. The hearing of the originating application was subsequently adjourned until 13 August 2015. On this date, no appearance was made by the appellants when the matter was called. Despite this, affidavits were presented before a judge in the applications list, attesting to the service of the originating application in accordance with the modes of service stipulated in the substituted service order. Based on these affidavits, the judge issued orders for the recovery of possession and further ordered the appellants to pay the respondents' costs of the proceeding. Dissatisfied with these orders, the appellants filed a notice of appeal on 24 August 2015. The primary issue before the court was whether the judge was correct in making these orders.

In addressing the legal issues, the court examined the procedural aspects of the substituted service and the implications of non-appearance by the appellants. The court noted that the substituted service order was validly executed, as evidenced by the affidavits. The court also highlighted that the appellants had the opportunity to contest the orders but chose not to appear. The court found that the judge acted within their jurisdiction in making the orders for possession and costs, given the absence of any appearance or opposition from the appellants. The court's reasoning underscored the importance of following procedural requirements and the consequences of failing to appear in court. Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.

In summary, the court upheld the orders made by the applications judge. The appeal was dismissed, and the appellants were required to pay the respondents' costs of the appeal. This decision emphasised the importance of adhering to court procedures and the potential consequences of non-appearance in legal proceedings.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellants to pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Scott & Ors v Colwell & Anor [2016] QCA 39
PARTIES:	PETER DOUGLASS SCOTT (first appellant) CATHERINE ANNE SCOTT (second appellant) RHYS DAVID ANDREW SCOTT (third appellant) v WILLIAM MARTIN COLWELL AND TIMOTHY JAMES MICHAEL as receivers and managers of Property described as LOTS 1 AND 2 ON SP 137409 OF STANLEY PARISH OF KEDRON (respondent)
FILE NO/S:	Appeal No 8369 of 2015 SC No 6758 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 13 August 2015
DELIVERED ON:	26 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2016
JUDGES:	Gotterson and Philippides JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. Appellants to pay the respondent’s costs of the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where the appellants are the registered proprietors of land held by the respondents as receivers and managers – where the respondents commenced proceedings by way of originating application in the Supreme Court of Queensland on 10 July 2015, seeking orders for possession of the land and other relief – where orders for substituted service were made on 22 July 2015 – where the hearing of the originating application was adjourned until 13 August 2015, upon which date there were no appearances for the appellants when the matter was called – where affidavits were read before a judge in the applications list establishing service of the originating application in accordance with the modes of service for which the substituted service order provided – where the learned applications judge made orders for recovery of possession and a further order that the appellants pay the respondent’s costs of the proceeding – where the appellants filed a notice of appeal on 24 August 2015 against the orders made – whether the learned applications judge was correct in making such orders Uniform Civil Procedure Rules 1999 (Qld), r 116
COUNSEL:	The appellants appeared on their own behalf G D Sheahan for the respondent
SOLICITORS:	The appellants appeared on their own behalf Clayton Utz for the respondent