The Trust Company Ltd v Lui

[2025] QDC 157

DISTRICT COURT OF QUEENSLAND

CITATION: 

The Trust Company Ltd v Lui [2025] QDC 157

PARTIES: 

THE TRUST COMPANY LTD ACN 004 027 749

(Plaintiff)

v

MING LUI

(Defendant)

FILE NO:

2370/25  

DIVISION:

Civil  

PROCEEDING:

Application  

ORIGINATING COURT: 

District Court at Brisbane

DELIVERED ON:

30 October 2025  

DELIVERED AT:

Brisbane

HEARING DATE: 

29 October 2025 (on the papers)  

JUDGE:

Porter KC DCJ

ORDER:

1.    Application dismissed.

1. The applicant plaintiff seeks orders for substituted service on the defendant.

2. The applicant submits that it is impracticable to serve the defendant personally and that service has a high probability of success if served on two addresses and an email address associated with him.

3. The applicant has caused process servers to attempt service at the following addresses:

   (a)An address in Russell Street believed to be the defendant’s residence;

   (b)An address in Relentless Court believed to be a place of business he utilises; and

   (c)An address of a property in Sunnybank of which the defendant is the registered proprietor.

4. As to the first, the Russell Street address is given as an address for service under the Lease between the parties.  There is also evidence on current ASIC searches showing Russell Street to be the defendant’s residence.  Further, a person at the Relentless Court address (who also confirmed the defendant owned a business operating there) said he lives in a unit in Russell Street.  It is likely that address remains his home.  There have only been three attempts at service at Russell Street in mid-September (mid-morning and early evening) and those have not produced any evidence that the defendant was home at those times.  Some people go on holidays.  Some people work long hours.  

5. The Relentless Court address was provided by a commercial real estate agency employee, along with an email and mobile number.  There was no context provided in the evidence as to the currency of that information.  However, the process server who attempted service there on three occasions, was informed on two occasions that the defendant was the owner of the business run from there but that he was rarely there. 

6. The plaintiff also caused attempted service on the Sunnybank address but was told by a person on site that the property was being sold and neither he nor the neighbours spoken to said they knew the defendant.  The process server was informed that the agent was Ray White.  Messages were left with an agent seemingly of Ray White Sunnybank, though there was no evidence she was involved with the sale nor that the agency involved was the Sunnybank officer of Ray White (though it was probably a reasonable guess).  The agent has not returned the calls of the process server.

7. The plaintiff also sent an email to the address provided by Lasalles.  They received a notification it had been opened, though no response has been received and there was no evidence of the defendant sending an email from that email address.

8. Attempts were made to call the mobile number provided by Lasalles, though no response has been received and there is no evidence of the defendant responding to or using that number. 

9. The evidence relied upon is mostly admissible, though strictly speaking the process servers’ evidence of hearsay statements is not sworn in proper information and belief form, nor arguably is the evidence of the Lasalles instructions.[1] 

   [1] Grow Asset Finance Pty Ltd v Bassi [2022] QDC 23 at [8] to [9], amongst other cases.

10. Putting that to one side, however, I turn to the threshold question of impracticability.  One of the problems with the plaintiff’s evidence is that there is no evidence that the defendant is at his likely residence, nor has he recently been at his apparent business premises.  There is a lack of evidence of his presence at all.  He might be keeping house, but it is just as likely he is on holidays, away on business, or was just not at home on the very few (three only) occasions that efforts were made to serve him, or that he has moved from that residence.

11. The only material basis for the submission that he is avoiding service is the lack of response to the email sent to the Lasalles email address and the calls to the Lasalles mobile.  However, I have already observed that there is no recent evidence of the defendant continuing to use that email or mobile.    I do not put weight on the lack of the response from the agent for the reasons already given.

12. In the light of those matters, I accept it is presently impracticable to serve the defendant personally but not because I am satisfied that he is avoiding service.  Rather, it seems to me that the plaintiff just does not know where the defendant is or how (with a high level of assurance) to contact him. 

13. While impracticability might formally be made out in the circumstance, the difficulty arises with making an order for substituted service.  A Court must have a high level of assurance that substituted service orders will bring a proceeding to the attention of the defendant.  I am not satisfied that service on Russell Street or the email address will “in all reasonable probability, if not certainty, be effective to bring knowledge of the proceedings to the defendant”,[2] certainly not within any reasonable time frame.  Service on the property of which he is registered proprietor is also uncertain.  I have no evidence that the house or its mailbox is supervised by anyone associated with the defendant.  Again, such service might work, but I am not persuaded on the evidence that it will.

    [2] Porter v Freudenberg [1915] 1 KB 857 at 888-889.

14. Whether rule 118 Uniform Civil Procedure Rules 1999 (Qld), service under a contract, is available on the proper construction of the relevant provisions of the lease is another matter, but not a matter before me on this application.

15. As Judge Cash explained in Sunshine Phone Systems (in liq) v Martens and Martens [2021] QDC 36, substituted service orders should not be made lightly. The effect of a substituted service order is that the documents are taken to have been served using indirect means after a certain period. Often, this provides a foundation for serious consequences in the form of a default judgment.[3] If the proceedings have not in fact been brought to the attention of the defendant, there is an increased possibility of injustice. Where it comes to light that a successful application was deficient, the task of setting aside default judgment imposes unnecessary pressure, expense and difficulty upon the courts and the parties, particularly as most respondents in these applications are self-represented.

    [3] Westpac Banking Corporation v Rabah & another [2024] QDC 12 (Porter J) [8]; Sunshine Phone Systems (in liq) and Anor v Martens and Martens [2021] QDC 36 [18] (Cash J).

16. While the application was reasonably brought, I am not persuaded that the order should be made on the present evidence.  I dismiss the application.