Permanent Custodians Limited v. Massey [2009] QSC 4 (3 February 2009)

Last Updated: 19 February 2009

SUPREME COURT OF QUEENSLAND

CITATION:	Permanent Custodians Limited v Massey [2009] QSC 4
PARTIES:	PERMANENT CUSTODIANS LIMITED (plaintiff) v MASSEY (defendant)
FILE NO:	9230 / 08
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
DELIVERED ON:	3 February 2009
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	29 January 2009
JUDGE:	Wilson J
ORDER:	That the application be dismissed
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SERVICE – where the claim and statement of claim had not been served on the defendant – where it was impracticable to serve the documents personally – where it was proposed that service be effected by email transmission – whether the proposed method of service was likely to bring the proceeding to the knowledge of the defendant Uniform Civil Procedure Rules 1999, r 116 Miscamble v Phillips & Anor [1936] StRQd 272, cited
SOLICITORS:	Gadens Lawyers for the plaintiff

[1] Wilson J: This proceeding was commenced by claim filed on 18 September 2008.

[2] The plaintiff alleges that the defendant is and has at all material times been the registered owner and in possession of certain land at Sanctuary Cove. By a loan agreement dated 14 June 2007 between the plaintiff as lender and the defendant as borrower, the plaintiff agreed to lend the defendant the sum of $1,125,000.00, and the defendant agreed to give the plaintiff a mortgage over the land to secure the money owing under the loan agreement. Such a mortgage was executed on 14 June 2007.

[3] The plaintiff alleges default under the loan agreement and the mortgage. It seeks to recover possession of the land and in excess of $1.15 million plus interest pursuant to the loan agreement.

[4] The claim and statement of claim have not been served on the defendant. This is an application for substituted service.

[5] Initiating proceedings ought to be served personally on a defendant. However, under rule 116 of the UCPR, if it is impracticable to do so, the Court may make an order for substituted service. I am satisfied from the material filed in support of the application that it is impracticable to serve the documents personally.

[6] In order to succeed on this application the plaintiff must satisfy the Court that the method of service proposed is likely to bring the proceeding to the knowledge of the defendant or someone representing his interests: Miscamble v Phillips & Anor [1936] StRQd 272.

[7] The applicant proposes that service be effected by email transmission to:

(a) the defendant at his email address of [e-mail] mailto:[e-mail] and

(b) the defendant’s solicitor Mr Tony Gray of Stacks Gray at his email address of [e-mail] .

[8] On 10 September 2008 David Civico, a paralegal in the employ of the plaintiff’s solicitors, called a mobile telephone number believed to be that of the defendant and spoke with a male person who identified himself as the defendant. They discussed the outstanding loan. The defendant declined to give Mr Civico his residential address or any information as to his current whereabouts. Mr Civico asked the defendant to arrange for his solicitor to write to him. The defendant requested that the paralegal send him details by email at [e-mail]. Mr Civico wrote to the defendant at that email address later that day; on 12 September 2008 he received a reply from the defendant from that email address.

[9] Subsequently on 15 September 2008 Mr Civico received an email from Mr Tony Gray at [e-mail] confirming that he represented the defendant.

[10] Mr Civico wrote to Mr Gray again at that email address on 16 September 2008; the next day he received a response from Mr Gray from a different email address [e-mail].

[11] There is no evidence of email communications from either the defendant or Mr Gray after the claim was filed on 18 September 2008.

[12] In all of these circumstances I am not satisfied of any of the following:-

(a) that the defendant can still be contacted at the email address [e-mail];

(b) that Mr Gray is still a solicitor acting for the defendant;

(c) that an email addressed to Mr Gray at [e-mail] would be likely to come to Mr Gray’s attention;

(d) that documents emailed to Mr Gray at [e-mail] would be likely to come to the attention of the defendant.

[13] It follows that I am not prepared to order substituted service by the means proposed in this application.

[14] Even if I were going to make an order for substituted service by email, I would not be prepared to deem service to have been effected within only one business day of the sending of the documents to the email address. Further, I consider that in the circumstances of a case such as this, there should be more than one mode of substituted service specified – for example, service at an email address or addresses and service by post to the defendant at his last known residential address and or to the defendant c/- his solicitor at the solicitor’s address.

[15] In the circumstances the application should be dismissed.