Wadham Park Thoroughbreds Pty Ltd v Stubbs
[2011] QDC 188
•11/08/2011
[2011] QDC 188
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3960 of 2010
| WADHAM PARK THOROUGHBREDS PTY LTD | Plaintiff |
| and | |
| KEITH McDONALD STUBBS | Defendant |
BRISBANE
..DATE 11/08/2011
ORDER
CATCHWORDS
District Court of Queensland Act 1967 s 68(1), s 68(3), s 85 Uniform Civil Procedure Rules r 116
Plaintiff's vendor's claim for specific performance of contract of sale of land - land belatedly shown valued unimproved by the valuer-general at $390,000 - claim for unpaid 10 % deposit of $725,000 and interest - plaintiff now wishing to claim damages which may exceed the monetary limit in the alternative to specific performance - amendment allowed - claim transferred to Supreme Court - substituted service of claim and statement of claim ordered
HIS HONOUR: In my view the costs of the present application ought to be reserved rather than being made the plaintiff's costs in the cause in this proceeding which is to be transferred to be dealt with in the Supreme Court.
The circumstances are such that the plaintiff appears likely to succeed. I'm not prepared to say that the defendant bears responsibility for the obtaining of all or, indeed, any of the relief presently sought being adjudged necessary.
As to the amendment aspect, the plaintiff now encounters a difficulty posed by the monetary cap on this court's jurisdiction. The original claim filed the 20th of December 2010 sought specific performance of a contract by which the defendant purchased property for 7.25 million dollars without paying the 10 per cent deposit. Damages were sought in addition to specific performance. The monetary claim was $725,000 plus interest which additional component is not of concern because of the cap. See District Court of Queensland Act 1967 s 68(3)(c).
Settlement of the transaction was to occur in the middle of last year. Various extensions were granted to the defendant but the plaintiff lost patience and commenced the proceeding still being hopeful of obtaining specific performance. The amendment seeks as an alternative to the principal relief of specific performance damages which may exceed the monetary cap. That's the reason for the transfer.
In every District Court proceeding before the court makes any order it's necessary that the court's jurisdiction be established. The way in which that's done in a specific performance proceeding is to show the Valuer-General's unimproved value which the statement of claim filed already fails to do: s 68(3)(b).
However, on this occasion, being the first on which a court order is sought, Mr Stockley's affidavit places before the court the latest Queensland Valuation and Sales Service full history report which the court assumes has some official provenance. That shows the unimproved value at $390,000, establishing the court's jurisdiction.
Mr Skoien drew my attention to an error in Mr Stockley's affidavit where he introduces the exhibit. In what's an obvious error, he describes the unimproved capital value in terms of a figure well in excess of the jurisdictional cap. The mistaken figure appears from his Exhibit 6 to have been the price in the last sale of the property back in 2003. The court's jurisdiction is established. Permitting the amendment is little more than a formality that ought to occur.
So far as substituted service is concerned, the evidence before the court indicates that the defendant's residential address is 39 Auckland Street, Wishart, making it an appropriate address to use. Mr O'Neill, the process server engaged attended no less than 10 times without ever finding Mr Stubbs there. He suffered serious injuries in a road accident a couple of months ago and is in hospital unable to provide an affidavit himself, but records of the business in which he works established those attempts at service. Electoral roll searches and the like confirmed that that address is the appropriate one.
In my view, the court ought to exercise a practical approach in circumstances of this kind rather than force a plaintiff to continue to make efforts at personal service. I've been struck by experience, particularly in recent months, as to how effective substituted service orders of this kind prove to be in flushing out defendants, a comment made without casting any aspersions against Mr Stubbs.
In addition to substituted service at the residence in the way indicated, service is proposed and ordered on Mr Stubbs' solicitors as named in the contract of sale and on another firm who have taken over as his solicitors in the contract of sale. The reason for including both of them is that the standard commercial condition in the contract which provides how "any document concerning this contract may be given" is in terms of giving to the other party's solicitor which, in the circumstances, will most likely be taken to be the one named in the contract in my view, although it may be that a term can be implied making recourse to the new solicitor appropriate. That provision doesn't purport in terms to extend to service of court process. In my view it might be advisable to consider revision of this standard provision so that it does.
The proposal here is to serve both solicitors. I'm satisfied with that, given that the solicitors presently acting have been continuing to send correspondence in Mr Stubbs' interest as recently as within the last six weeks or so.
So far as the transfer to the Supreme Court is concerned it's a straight forward case under section 85 of the District Court of Queensland Act 1967. The court need not be troubled by the scenarios dealt with in subsection (4) and (5) in my view. It was the obvious and efficient course, given that this court had jurisdiction to entertain the claim as originally formulated, to proceed in this court notwithstanding the high contract price. The plaintiff might have come under criticism for turning to the Supreme Court at the outset.
There's good reason to think that the correct outcome of the proceeding maybe a money judgment for the plaintiff in a sum greater than $750,000 exclusive of interest and for that reason the court ought to order the transfer nothing having been served on the defendant yet. That's not going to involve any prejudice whatever to him.
Order as per initialled draft.
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