St George Bank Ltd v Kerr

[2009] QDC 306

[2009] QDC 306

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 23 of 2009

ST GEORGE BANK LIMITED	Plaintiff
and
NIGEL JOHN KERR	Defendant

MARYBOROUGH

..DATE 14/09/2009

JUDGMENT

Catchwords: Uniform Civil Procedure Rules r 116, r 119 - plaintiff mortgagee claiming possession of mortgage property consequent upon default - unable to effect service at property (being defendant mortgagor's only known address) - mortgage authorised service by delivery to or leaving at property - service in that way (cumulative on posting) directed.

HIS HONOUR:  St George Bank Limited v Kerr, number 23 of 2009.  There are no appearances in this matter which is an application for an order permitting substituted service of the claim and statement of claim.  By arrangements made before today the plaintiff's solicitors who are based in Brisbane were excused from having to attend at court here in Maryborough, the court undertaking to deal with the matter on the filed material.  A detailed written submission has been supplied.

I have considered that and pursuant to rules 116 and 119 order that the claim and statement of claim may be served on the defendant by: (a) posting of copies thereof together with a copy of this order to him at 18 Woodville Street, Maryborough West, Queensland 4650; and in addition (b) delivering and leaving copies thereof together with a copy of this order at lot 73 on registered plan 4108 County of March, Parish of Maryborough, such service to be effective 14 days after the doing of those things, subject to the filing of an affidavit or affidavits deposing to it.  Costs reserved.

The property and address referred to are both described in the material as "the Maryborough West property".  That's so particularly in the affidavit of a solicitor Myles Spencer Brown.

There is however no exhibited search or other material confirming that the two descriptions do refer to the same property.  What the plaintiff seeks in the proceeding is possession of that property pursuant to default by the defendant under a mortgage of it. 

There have been repeated attempts at serving the claim and statement of claim, at "the Maryborough West property".  A lady has been present on occasions there, apparently in residence.  She refuses to disclose the defendant's whereabouts.  There's some suggestion he may be in Airlie Beach.  There are also suggestions in the material that his ordinary residence is that property.

Another affidavit deposes to a person, answering to the name of Nigel, responding to a telephone call to one of two mobile numbers said to be connected to the defendant which had been called.  The person last Friday apparently indicated that he was in Sydney but returning to Queensland next week and that his postal address was 16 Woodville Street.

It is immaterial whether suspicions that the defendant is seeking to avoid service are well-founded or not.  Uncertainty about that inclines me against acceding to the plaintiff's request that costs of this application be its costs in the cause, without the defendant having an opportunity to challenge that he has been avoiding service; if the claim proceeds to a default judgment with the defendant not taking up such an opportunity, I may well be amenable to awarding the costs now reserved on a relatively informal approach (on notice).  It appears that he is aware of the proceedings and it may be inferred that he would be aware of the nature of them.

The mortgage instrument provides in section 24.6: "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."

That provision answers the requirements for service in a way and at a place in Queensland or elsewhere specified in an agreement for purposes of r 119. Even without such a provision it would seem something of a reproach to the system if in circumstances such as the present a mortgagee entitled to require possession of premises consequent upon default were obliged to locate a defendant for whom no other address was known before being able to proceed in a court to obtain possession.

If anything does go wrong, an order for possession which ought not to have been made is susceptible of being set aside on application on proper material of the defendant, given that he or she has not been heard by the court.  It's because of the "disconnect" between the property description and the street address that the court is requiring service in both of the modes defined in the order.

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