Suncorp Metway Ltd v Agnew

[2015] QSC 195

SUPREME COURT OF QUEENSLAND

CITATION:

Suncorp Metway Ltd v Agnew [2015] QSC 195

PARTIES:

SUNCORP-METWAY LTD
ACN 010 831 722
(applicant)
v
WAYNE FORREST AGNEW
(respondent)

FILE NO:

BS2686/15

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

6 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2 July 2015

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. The requirements for personal service pursuant to rule 105 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) be dispensed with for the Defendant.

2. Pursuant to rule 116 of the UCPR, in lieu of personal service, sealed copies of the Claim and Statement of Claim filed on 16 March 2015 and a sealed copy of this order (“Documents”) be served on the Defendant by:-

a.   Posting the Documents by registered post to Wayne Forrest Agnew at 12 Bushland Street, Boondall QLD 4034; and

b.   Sending the Documents by electronic email to Wayne Forrest Agnew to the email address of [email protected].

3.   Service of the Documents be deemed to have been effected four (4) days after the Documents have been served in accordance with order 2 (a) – (b) above.

4.   That the costs of the application are the applicant’s costs in the proceeding.

5.   Such further or other orders as the Court deems fit.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SERVICE – where the applicant sought to personally serve the originating process on ten separate occasions on the respondent – where the applicant was unsuccessful in personally serving the respondent – whether the court should order substituted service on the respondent

Uniform Civil Procedure Rules 1999 (Qld), rr 105, 106, 116

COUNSEL:

Hearing on the papers

SOLICITORS:

Mills Oakley Lawyers for the plaintiff

1. JACKSON J: The applicant is the plaintiff in the proceeding. It claims recovery of possession of land from the defendant and payment of monies due and owing pursuant to a mortgage dated 2 September 1994.

1. On 25 June 2015, the applicant filed an application to dispense with the requirement for personal service under r 105 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).

1. Rule 105 UCPR requires service of an originating process must be served personally on the person intended to be served. Service under r 105 UCPR is to be made in accordance with r 106 UCPR.[1]

   [1]Uniform Civil Procedure Rules 1999 (Qld), r 106.

1. Where a party is unable to personally serve another party the rules provide for substituted service under r 116 UCPR.

1. The applicant has conducted property searches which reveal that the respondent’s address is 12 Bushland Street, Boondall Queensland 4034. The applicant engaged agents to effect personal service of the Claim and Statement of Claim on the respondent. The agents attempted service at the respondent’s address on ten separate occasions.

1. Those occasions are as follows: 21 March 2015; 30 March 2015; 7 April 2015; 9 April 2015; 11 April 2015; 11 May 2015; 12 May 2015; two occasions on 13 May 2015 and 18 May 2015.

1. The evidence suggests that the respondent lives at the address. The applicant’s first process server, Mr Glen Harvey, noticed that there was current mail addressed to the respondent in the mailbox. Mr Harvey also spoke with a female neighbour who confirmed that a man named “Wayne” lived at the address.

1. The applicant has conducted a search on the Australian Securities and Investments Commission database and made inquiries whether rates notices of the property were sent to the property addressed to the respondent.

1. These searches confirm the address of the respondent obtained on the title search of the property.

1. Further, the applicant’s agents and solicitors have attempted to contact the respondent on a telephone number which went to a voice message for “Wayne”. The Yellow Pages list a person by the name of “W Agnew” in Boondall with a pest control business under that number

1. In my view, the applicant has sufficiently demonstrated that the requirement of personal service under r 105 UCPR should be dispensed with. It follows that substituted service should be ordered in the terms as provided in the applicant’s application, except that the costs should be the applicant’s costs in the proceeding.