Scott v Colwell
[2016] QCA 39
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- Unreported Judgment
- Appeal Determined (QCA)
- Scott v Colwell[2016] QCA 39
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Scott v Colwell[2016] QCA 39
Scott v Colwell[2016] QCA 39
SUPREME COURT OF QUEENSLAND
CITATION: | Scott & Ors v Colwell & Anor [2016] QCA 39 |
PARTIES: | PETER DOUGLASS SCOTT |
FILE NO/S: | Appeal No 8369 of 2015 SC No 6758 of 2015 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – Unreported, 13 August 2015 |
DELIVERED ON: | 26 February 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 February 2016 |
JUDGES: | Gotterson and Philippides JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where the appellants are the registered proprietors of land held by the respondents as receivers and managers – where the respondents commenced proceedings by way of originating application in the Supreme Court of Queensland on 10 July 2015, seeking orders for possession of the land and other relief – where orders for substituted service were made on 22 July 2015 – where the hearing of the originating application was adjourned until 13 August 2015, upon which date there were no appearances for the appellants when the matter was called – where affidavits were read before a judge in the applications list establishing service of the originating application in accordance with the modes of service for which the substituted service order provided – where the learned applications judge made orders for recovery of possession and a further order that the appellants pay the respondent’s costs of the proceeding – where the appellants filed a notice of appeal on 24 August 2015 against the orders made – whether the learned applications judge was correct in making such orders Uniform Civil Procedure Rules 1999 (Qld), r 116 |
COUNSEL: | The appellants appeared on their own behalf G D Sheahan for the respondent |
SOLICITORS: | The appellants appeared on their own behalf Clayton Utz for the respondent |
[1] GOTTERSON JA: On 4 December 2012, the National Australia Bank Ltd (“the Bank”) appointed the respondents to this appeal, William Martin Colwell and Timothy James Michael as receivers and managers to land described as Lots 1 and 2 on SP137409 situated at 9 Valente Close, Kedron, Brisbane (“the mortgaged land”).[1] Peter Douglass Scott, Catherine Anne Scott and Rhys David Andrew Scott, the appellants, are the registered proprietors of the mortgaged land.[2]
[2] On 10 July 2015, the respondents commenced proceedings in the Supreme Court of Queensland against the appellants by way of originating application. They sought orders for possession of the mortgaged land and other relief. Later, on the respondent’s application, a judge of the trial division made orders for substituted service of the originating application and the two affidavits which supported it.[3] These orders were made on 22 July 2015 pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (“UCPR”). It was also ordered that the hearing of the originating application be adjourned to 13 August 2015.
[3] The substituted service orders specified modes of service by leaving a copy of each of the originating application, the supporting affidavits and the substituted service order at the front door of a dwelling at 110 Basnett Street, West Chermside; calling Mr Peter Scott on a specified mobile number and informing him that the documents had been so served; emailing Mr Peter Scott at a specified email address and attaching copies of the documents; and emailing Mr Rhys Scott at a specified email address and attaching copies of the documents. The order further provided that the originating application and the supporting affidavits be deemed to have been personally served on each of the respondents to the application within seven days of compliance of each mode of service.
[4] On 13 August 2015, when the matter was called before a judge in the applications list, there was no appearance by the appellants. Affidavits were read before his Honour which proved service of the originating application and the two supporting affidavits in accordance with the modes of service for which the substituted service order provided. The two supporting affidavits established a legal entitlement on the part of the respondents to orders for recovery of possession of the mortgaged land. On the basis of all of this evidence, the learned applications judge made orders for recovery of possession and a further order that the appellants pay the respondent’s costs of the proceeding.[4]
[5] On 24 August 2015, the appellants filed a notice of appeal against the orders made on 13 August 2015.[5]
Grounds of appeal
[6] The grounds of appeal stated in the notice of appeal are as follows:
“1.Making an order in the Appellants Absence when it was clear that they were not served and made aware of the proceedings on foot.
2.Not making greater enquiry as to the avenues that the Respondent had relied upon to attempt service.
3.Making a final order that is prejudicial to the Appellant in that once they were aware of the Final Order made there was no alternative but to file an appeal to the order made by Justice Byrne.
4.Not requesting that the Respondent provide to the court any evidence that proves the methods relied upon for Substitute service would in fact reach the Appellant.
5.The Appellants suffered a significant injustice for not being afforded the right to be heard at the originating application given there is an ongoing dispute between the Appellants and National Australia Bank which is required to be ventilated before the court.”[6]
Analysis
[7] In order to succeed on an appeal to this Court from the decision of a judge at first instance, it is necessary for an appellant to establish that the judge erred in law in making the decision. The grounds of appeal as expressed here do not allege any appealable error of law on the part of the learned applications judge.
[8] Ground 1 misapprehends of what it was that his Honour was required to be satisfied with respect to service of the documents. In this case, there was proof of service in accordance with the modes of service for which the orders made on 22 July 2015 had provided. Though irrelevant for his Honour’s purposes, this ground wrongly proposes that there was evidence before him that the appellants had not been “served and made aware of the proceedings…” That proposition is wrong. There was no such evidence.
[9] Ground 2 proposes that the learned applications judge was obliged to enquire into the efficacy of the modes of service for which the earlier order provided. That proposition is incorrect.
[10] Ground 3 is an obscurely expressed complaint of a factual consequence, not of an error of law. Moreover, it includes a misapprehension to which I shall advert towards the end of these reasons.
[11] Ground 4 is similar to Ground 2. The proposition on which it is based is incorrect as a matter of law.
[12] Ground 5 is misconceived. The proceeding before the learned applications judge did not require the adjudication of any legal dispute between the appellants and the Bank. The Bank was not, and has not since become, a party to this proceeding. Claims that the appellants may wish to pursue against the Bank may not be “ventilated” in it, as presently constituted.
Disposition
[13] In summary, the appellants’ grounds of appeal fail to identify any legal error on the part of the learned applications judge. In their written and oral submissions, Mr Peter Scott and Mr Rhys Scott pressed assertions on their part that they did not know of the existence of the proceedings at the time of the hearing date on 13 August 2015, and that they have claims that they wish to pursue against the Bank. As I have explained, these assertions do not expressly or impliedly articulate any error of law on his Honour’s part.
[14] For these reasons, the appeal must be dismissed. The appellants having failed, they must pay the respondent’s costs of the appeal.
[15] It remains to note that the appellants did not make an application under r 667(2)(a) UCPR in respect of the order made on 13 August 2015. Such an application would, in the normal course, be made to a judge of the trial division of the Supreme Court.[7] Moreover, an application of that type here almost certainly would have involved determination of contested issues of fact as to whether the appellants were aware, by the time of the hearing date, that documents had been left, notified and emailed in accordance with the ordered modes for substituted service.
Order
[16] I would propose the following orders:
1.Appeal dismissed.
2.Appellants to pay the respondent’s costs of the appeal.
[17] PHILIPPIDES JA: I agree for the reasons stated by Gotterson JA that the appeal should be dismissed with costs.
[18] DAUBNEY J: I agree with Gotterson JA.