Pacific Petroleum Products Pty Ltd v Malbro (Queensland) Pty Ltd
[2008] QDC 273
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- Pacific Petroleum Products Pty Ltd v Malbro (Queensland) Pty Ltd[2008] QDC 273
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Pacific Petroleum Products Pty Ltd v Malbro (Queensland) Pty Ltd[2008] QDC 273
Pacific Petroleum Products Pty Ltd v Malbro (Queensland) Pty Ltd[2008] QDC 273
[2008] QDC 273
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2151 of 2008
PACIFIC PETROLEUM PRODUCTS PTY LTD (ACN 059 717 421) | Plaintiff |
and | |
MALBRO (QUEENSLAND) PTY LTD and MALCOLM KEITH BROOKS | Defendants |
BRISBANE
DATE 18/11/2008
ORDER
CATCHWORDS: | Uniform Civil Procedures rules r 116 - substituted service permitted on company director sued as guarantor by posting both ordinary and pre-paid to its registered office, which was a house property registered in his name and his electoral roll address. |
HIS HONOUR: This is an application for an order for substituted service under Rule 116. The claim is by the supplier of fuel to its customer, the first defendant company. The second defendant was a director and is sued pursuant to contractual arrangements reproduced in the statement of claim whereby "the undersigned, a director, or directors do hereby guarantee to the supplier, the due and punctual payment of all moneys".
The defendant company has failed and is now in the control of liquidators. Although not purporting to have usefully adopted it, the liquidators confirmed that the address they have for the second defendant director is 179 Discovery Drive, Helensvale, which is also the company's registered office in Queensland. That is a residential property which since 2003 has been registered in the name of the second defendant and one Jennifer Martin.
It is not only ASIC searches and other searches such as that of the electoral roll, and at the Land Titles Office, which place the second defendant at that address. There is nothing whatever to indicate any contrary address. As Mr Pham points out, only last month there was registered a second mortgage against the title which bespeaks some recent association between the defendant and the property.
Attempts to serve him there have been unavailing, some nine attempts being deposed to. On occasions, a female person, or persons, has been located there, including one answering to Jennifer Martin. Information has been given that the second defendant has moved, and unconvincingly to my mind - that nobody has any idea where he may have moved to, or of any other possible means of contacting him.
Service by post, or more correctly, notification, I suppose, of the application now before the Court and supporting material which was sent to that address, has been established. Unsurprisingly, the addressee has not turned up when called outside the Court.
Under Rule 116, the Court ought to take some care not to make orders which are really illusory, and scant hope can be held that service of Court process by the designated means will bring it to the attention of the appropriate person. There is no particular reason to have qualms here. The circumstances are such as to justify the Court's being robust. Of course, if the consequence is some kind of default judgment against the second defendant, it will be open to him to approach the Court seeking to have any judgment set aside, and availing himself of some opportunity to defend the claim.
The order of the Court is in terms of the initialled draft which provides:
- Pursuant to Rule 116(1) of the Uniform Civil Procedure Rules, service of the claim and statement of claim on the second defendant may be effected by mailing a sealed copy of the claim and statement of claim in this proceeding to 179 Discovery Drive, Helensvale, Queensland, together with a copy of this order, both by registered post and by ordinary pre-paid post, such service to be deemed effective seven days after the taking of those steps.
- Service of this application and supporting affidavits is deemed to have been effected on the second defendant by ordinary mailing of a sealed copy of this application and supporting affidavits to 179 Discovery Drive, Helensvale, Queensland, 4212, as deposed to in the affidavit of N M Pham, read and filed today by leave.
- The plaintiff's costs of this application be its costs in the cause against the second defendant.