Zonebar Pty Ltd v. Hastings [2008] QDC 173 (15 April 2008)

Last Updated: 17 July 2008

[2008] QDC 173

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RYRIE

No BD250 of 2008

ZONEBAR PTY LTD ACN 079510795	Plaintiff
and
ROSS HASTINGS	Defendant

BRISBANE

..DATE 15/04/2008

ORDER

HER HONOUR: This is an application pursuant to rule 116 of the Uniform Civil Procedure Rules for substituted service that will provide if for any reason it is impracticable to serve a document in any way required under the rules, the Court may make an order substituting another way of serving the document or I may, in its order, specify the steps to be taken instead of service, bringing the document to the attention of the person to be served.

Mr O'Connor, who appears on behalf of the plaintiff/applicant hereinafter referred to as the plaintiff, has relied on affidavit material, in particular, that of Sean Patrick Victorsen, who had previously sworn an affidavit but subsequently a further one was read by leave this morning with the permission of the Court.

Mr Victorsen is a service processor who had been employed on behalf of the plaintiff, to serve, personally, Mr Hastings, of the statement to claim and the claim, itself. The instructions which he received was to attend at the last known address of Mr Hastings, namely, 15 Brookvale Drive, Underwood. That address was confirmed by the previous director of Zonebar Proprietary Limited, the plaintiff, who understood that that was, indeed, the address at which Mr Hastings was residing.

Indeed, as Mr Smits says, there was no other way, he understood, of contacting Mr Hastings, other than through the address as Underwood or, indeed, through Mr Loel, who was the solicitor, at least, on the record for Mr Hastings.

Mr Victorsen attended at the residence at 15 Brookvale Drive, Underwood many times. Unfortunately, he was unsuccessful. And each time the house, behind the 30 foot high, high brick fence at the rear and approximately five foot high at the front, was controlled by an electronic system operated by a keypad mounted on the fence line. The only visible communication was to use the intercommunication system to make contact with anyone in the house.

A large guard dog was also patrolling the entry on the inside. Mr Victorsen tells me in his affidavit he visited the relevant address approximately 15 times on occasions-----

...

HER HONOUR: Six times. And on each of the occasions he was unable to attract the attention of the persons who were inside the residence, despite calling out and sounding his own vehicle's horn. He waited various periods of time. Paragraph 6 in his affidavit deposes to waiting for about an hour and a-half for someone to even enter or leave the house.

Unfortunately, he was unable to speak to anyone who lived there or, indeed, who was visiting the house while at the property, which might have allowed him to then communicate he was outside.

It does appear on the affidavit material that has been read in respect of this application that all good attempts have been made to personally serve Mr Hastings of this claim - statement of claim and in the circumstances substituted service would appear to be appropriate because of the impracticality that has been experienced by Mr Victorsen so far as process server to make contact with Mr Hastings personally which is what, generally, prima facie, the rules require by way of service.

Accordingly, I am satisfied the orders sought in the application should be made. The orders of the Court therefore shall be; that service of the claim and statement of claim on the defendant in these proceedings be accomplished by,

a) Forwarding sealed copies of the said documents by prepaid postage to the defendant at 15 Brookvale Drive, Underwood and;

b) Forwarding photocopies of the sealed copies of the said documents by prepaid postage to the defendant, care of James Loel, solicitor, level one, 106 Boundary Street, West End, together with the enclosed letter.

So that, at the expiration of two business days after the said documents are forwarded to the defendant at 15 Brookvale Drive, Underwood and to the defendant, care of James Loel, the defendant shall be deemed to have been served with the claim and the statement of claim, herein.

The costs of this application shall be reserved, to be determined at a later time.

HER HONOUR: Thank you, very much, Mr O'Connor.

MR O'CONNOR: Thank you, very much, your Honour.