Stramit Co Pty Ltd v Moran

[2011] QDC 197

[2011] QDC 197

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 158 of 2011

STRAMIT CORPORATION PTY LIMITED	Plaintiff
and
ANTHONY JAMES MORAN & ORS	Defendant

BRISBANE

..DATE 14/07/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116

Second order for substituted service of claim and statement of claim on basis original order had proved impracticable as to one of the modes of service required (rather than original order being amended) - second defendant's keeping a gate locked prevented process server's fixing documents to his front door - proposed draft order changed to avoid confusion of defendant from being served a second time
HIS HONOUR: This is an application by the plaintiff under Rule 116 of the UCPR for substituted service of claim and statement of claim on the second respondent who, at the beginning of the proceeding, was described as the second defendant and perhaps still is.

It is the second such application, one having been made successfully to another Judge who made such an order on the 22nd of June 2011.  Compliance with that order has proved impractical.  It required service by posting and by fixing to the front door of the relevant premises of the documents to be served, together with a copy of the order.

It turns out that the second respondent keeps the gate of the relevant premises securely locked so that no process server can get beyond the gate.  The property is said to be acreage with the house not able to be seen from the front gate.  There had been multiple attempts by process servers to get past it.

The present application seeks an amendment of the earlier order, alternatively, the making of a new order for substituted service.  The latter is the more appropriate course.  I think it is liable to be confusing to the person to be served to have to work out the implications of a double order for substituted service.

There will be an order in terms of the initialled draft which has been substantially altered from the draft supplied by the applicant in seeking to comply with the Rules. I have thought it appropriate - to avoid, to the extent the Court can, possible confusion arising from previous service having occurred under such an order - to insert in the order an explanation of the making of the order under Rule 116 in terms of "service as permitted by the court's order of 20 June 2011 being shown to be impracticable."

Order as per initialled draft.

-----