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Westpac Banking Corporation v Stanley [2016] QDC 70 (1 April 2016)

Last Updated: 5 April 2016

DISTRICT COURT OF QUEENSLAND

CITATION:
Westpac Banking Corporation v Stanley [2016] QDC 70
PARTIES:
WESTPAC BANKING CORPORATION

ABN 33 007 457 141

(Plaintiff)

AND
CLAYTON GLENN STANLEY AND DEBORAH MICHELLE STANLEY

(Defendants)

FILE NO/S:
D3332/15
DIVISION:
Civil
PROCEEDING:
Application on the papers
DELIVERED ON:
1 April 2016
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Bowskill QC DCJ
ORDER:
Order for substituted service made, in terms set out in paragraph 16 below.
CATCHWORDS:
SERVICE – SUBSTITUTED SERVICE – SERVICE UNDER CONTRACT

Uniform Civil Procedure Rules 1999 (Qld), rr 116 and 119

Howard v Bank of New Zealand [2002] FCA 1257; (2002) 121 FCR 366

RHG Mortgage Corporation Ltd v Pang & Anor [2012] QDC 58

COUNSEL:
No appearances
SOLICITORS:
Kemp Strang Lawyers for the applicant

[1] Westpac Bank seeks to enforce a loan agreement with the defendants, which is secured by a mortgage over the defendants’ property at 198 Francis Road, Lawnton, by bringing proceedings in this Court seeking payment of the outstanding amount of the debt, plus interest, and recovery of possession of the property. The claim and statement of claim were personally served on Deborah Stanley, shortly after the proceedings were commenced in August 2015,[1] but have not been able to be personally served on Clayton Stanley. The Bank therefore applies for an order for substituted service under rule 116 of the Uniform Civil Procedure Rules 1999.

[2] The Bank proposed that the application be decided without an oral hearing, and it has been dealt with on that basis.

[3] When Deborah Stanley was served, on 31 August 2015, she apparently told the process server that Clayton Stanley works in Western Australia, would not be back until December, and only comes home a couple of times a year.

[4] There were a number of further attempts made to serve Clayton Stanley at the address at 198 Francis Road, Lawton – on 26 October, 2, 5, 10 and 17 November 2015. On each of these occasions, no contact was able to be made with any occupant, or neighbours. There were further attempts made on 18 and 25 January 2016, again with no contact with any occupant or neighbour (although on these occasions, there were cars parked at the address). There have also been a number of attempts to make telephone contact with Clayton Stanley, on the mobile number held for him by the plaintiff - on 10, 16, 24 and 30 November 2015. Phone messages were left, but no return call was received.

[5] According to a title search on 10 March 2016, Clayton Stanley remains a registered owner, with Deborah Stanley, of the property at 198 Francis Road, Lawnton.

[6] From the material, it seems no attempts were made to serve Clayton Stanley in December 2015 (when Deborah Stanley had said he would be back from Western Australia), and no further attempts have been made since 25 January 2016. Because of those two things, I did consider whether to adjourn this application, pending further attempts to personally serve Clayton Stanley.

[7] However, in light of the number of attempts that have otherwise been made, including to contact him by telephone, from which it may be inferred that personal service is impracticable, and also because of the Bank’s reliance on rule 119 of the UCPR, I am satisfied it is appropriate to make an order for substituted service, although not in the terms put forward by the Bank.

[8] Rule 119 provides that where, “before a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party ... in a way or at a place, in Queensland or elsewhere, specified in the agreement”, then the document may be served in accordance with that agreement.

[9] The agreement relied upon is the mortgage, which includes a clause E1 (Notices) in the following terms:

“A notice or demand under this mortgage will be served on you if:

The Lender may serve court documents in the same way.”

[10] In RHG Mortgage Corporation Ltd v Pang & Anor [2012] QDC 58, Robin QC DCJ held that a clause in a mortgage which provided, “We may serve any document in a court action (including a writ of summons, other originating process or third or other party notice) on you by delivering it to the property or by leaving it there...” was sufficient to cover the serving of court proceedings for the purposes of rule 119.

[11] The language used in the Stanley’s mortgage is plainer, but to the same effect as this. In the circumstances of this case, it is appropriate to give effect to clause E1 of the mortgage, and r 119 of the UCPR, such that service other than personal service may be effective.[2]

[12] However, in order to aid in bringing the documents to the attention of Clayton Stanley, the order I propose to make will not be limited to posting the documents by ordinary mail, as proposed by the Bank.

[13] The order requires the documents, and this order, to be posted by pre-paid express post (on the basis that express post enables tracking of the article to facilitate proof of posting if necessary).

[14] In addition, the order also requires the documents, and this order, to be affixed to the door of the house at the property, because it is not apparent from the affidavit material whether that has already been done.

[15] Further, the order requires a text message to be sent to the mobile number held by the Bank for Clayton Stanley, as well as for Deborah Stanley (if there is one), informing both of them of the making of this order.[3] I consider it appropriate to alert Deborah Stanley to the order for substituted service made, given the relationship between them, their joint ownership of the mortgaged property, and her status as a defendant to this proceeding.

[16] The order of the court is as follows:

  1. That personal service of the claim and statement of claim filed in these proceedings upon the first named defendant, Clayton Glenn Stanley, be dispensed with.

  1. Pursuant to rules 116 and 119 of the Uniform Civil Procedure Rules 1999, service of the claim and statement of claim be effected by:

(a) sending a copy of the claim and statement of claim, together with a copy of this order, by mail, in a pre-paid express post envelope, to Clayton Stanley, addressed to 198 Francis Road, Lawnton, Qld, 4501; and

(b) affixing an envelope, containing the claim and statement of claim, and a copy of this order, to the front door of the premises at 198 Francis Road, Lawnton, Qld, 4501 (the envelope to bear the name of the defendant, Clayton Stanley, and that address); and

(c) sending a text message, on or before the date of compliance with orders 2(a) and (b), to Clayton Stanley, on the mobile phone number 0412 995 842,[4] and Deborah Stanley on the mobile phone number held for her by the plaintiff (if there is one), advising that the District Court has authorised service on Clayton Stanley of a claim for recovery of possession of the mortgaged property and the amount of the mortgage debt by express post of the court documents to 198 Francis Road, Lawnton; and affixing of the documents to the front door of that property. The message should invite the recipients to obtain copies of the court documents from the plaintiff’s solicitors (with contact details provided), and give some indication that the plaintiff will be in a position to proceed by way of default if no notice of intention to defend is filed within 28 days of service.

  1. Service of the claim and statement of claim is deemed to have been effected on the defendant, Clayton Glenn Stanley, on the 4th business day after the posting of the documents in accordance with order 2(a), and/or the affixing of the envelope in accordance with order 2(b), whichever is the later.

  1. The costs of the plaintiff of this application be the plaintiff’s costs in the cause.


[1] Affidavit of Andrew Harvey filed 14 March 2016.

[2] See Howard v Bank of New Zealand [2002] FCA 1257; (2002) 121 FCR 366 at [5], [6], [10] and [11] per Drummond J (in relation to the equivalent Federal Court rule).

[3] See, for example, RHG Mortgage Corporation Ltd v Pang & Anor [2012] QDC 58.

[4] Which Ms Gillespie deposes is the last known mobile number for him (at [6(a)]).


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