Members Australia Credit Union Ltd v Cruickshank
[2011] QDC 89
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- Unreported Judgment
- Members Australia Credit Union Ltd v Cruickshank[2011] QDC 89
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Members Australia Credit Union Ltd v Cruickshank[2011] QDC 89
Members Australia Credit Union Ltd v Cruickshank[2011] QDC 89
DISTRICT COURT OF QUEENSLAND | [2011] QDC 89 |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 535 of 2011 | |
MEMBERS AUSTRALIA CREDIT UNION LIMITED | Plaintiff |
and | |
GAVIN CRUICKSHANK | Defendant |
BRISBANE | |
DATE 18/05/2011 | |
ORDER | |
CATCHWORDS | |
Uniform Civil Procedure Rules r 116, r 487, r 490 |
Application proposed to be decided without an oral hearing for substituted service of claim and statement of claim - evidence offered would not ordinarily suffice, but for production of a recent letter to the plaintiff's solicitors purporting to come from the defendant which discussed the subject matter of the claim - letter gave a post office box address and an email address which could be availed of HIS HONOUR: This is an application "on the papers", that is one proposed to lead to a decision without an oral hearing under rule 487 and following rules of the Uniform Civil Procedure Rules. It is an application for substituted service filed on the 18th April 2011.
It does not identify what document or documents are to be served in a special way but it's clear enough that it is the claim and attached statement of claim which are by a registered mortgagee, the relief sought being recovery of possession of the identified property and a sum of $97,070.33 plus interest.
There is an element of confusion in the statement of claim, which in paragraph 3 refers to the parties’ written agreement dated 17 February 2005 as the source of relevant obligations. Paragraph 5, however, identifies 14 March 2002 as the date of the relevant instrument of mortgage. Today is not the occasion for a further explanation as to whether there is some error.
The application before the court today was preceded by an earlier one filed on the 29th March 2011 proposing "that substituted service be effected upon the defendant by posting it to his address at 92 Dalway Crescent, Melton, 3337". That application was not proposed to be heard without an oral hearing but was to be heard by the court on the 14th April 2011.
Nothing happened on that day, the plaintiff having presumably had second thoughts about how to proceed. The application filed on the 18th April 2011 seeks that “substituted service be effected upon the defendant by posting it to his postal address at PO Box 5239, Upper Mt Gravatt, Queensland, 4122".
It's a matter of speculation whether the Victorian address proposed in the application filed 29th March 2011 was identified in error. The relevant premises are unit 6, 367 Cornwall Street, Greenslopes, a suburb of Brisbane.
There is an affidavit of attempted service by Mr Els, who deposes that his agent, Terry Herlihy, attended the premises at 9.25 a.m. on the 3rd March 2011 and spoke to the current occupant who stated that he'd been renting the property through Rental Express of Old Cleveland Road for about a month and did not know the defendant.
Mr Herlihy was supposedly told by the occupant of unit 5, at the same address, that that person also did not know of the first defendant. Mr Els said he made inquiries regarding the defendant via a website, www.tutorfinder.com.au and Gavin Cruickshank.PHP identifying a phone number, which was used to leave several messages, none of which attracted any response.
There is, in Mr Els's affidavit, reference to a request by the plaintiff that the defendant be looked for in Sunshine Boulevard at Broadbeach in Queensland to make inquiries as to the defendant's whereabouts. From limited personal knowledge of the area, I am prepared to accept Mr Els's plea that Sunshine Boulevard is a long street and without any street number it would be very difficult to locate the defendant there, assuming that's where he is.
The material relating to attempted service is thin but one wonders what else could have been attempted since no-one knows where the defendant is. The letting agent could be approached, but may be unwilling to give out the address (assuming it is known). A real property search confirms that the defendant is the registered owner of the subject premises.
What gives the court some comfort, so far as making an order for substituted service under rule 116 is concerned, is a letter of the 20th April 2010 which Mr Cruickshank wrote to the plaintiff's lawyers.
It responds to a letter of theirs dated 27 January 2010. It asserts that "loan arrears", then of a sum claimed to be just under $91,000, had been in dispute resolution with the Financial Ombudsman Service in a numbered case file. It was contended that there were matters to be resolved "very relevant to your client's claim", including "breach of trade practices", and application of wrong interest rates because a "standard" product had been marketed as a "premium" one (to "falsely add perceived value").
It was also contended there was an incorrect claim for arrears and recovery action based on the above and some other calculation error. It was suggested that if action in the court were commenced while the matter was in dispute before the Financial Ombudsman Service "no court will risk making orders" and that it was in the lawyer's and the plaintiff's best interests to receive this information "to prevent unnecessary damaging legal consequences".
The letter gives Mr Cruickshank's address at PO Box 6239 Upper Mt Gravatt, 4122, which is the address proposed for service in the draft order supplied. It also gives an email address of [email protected]. In the circumstances there seems little point in requiring service at the relevant premises and that use of the post office box ought to be effective having regard to the content of the letter.
I note that it is headed "private and confidential without prejudice except for costs". It makes no offer and, in my opinion, the plaintiff's solicitors have breached no confidence in putting it in evidence. The draft order supplied as required by rule 490 is insufficient and has been substantially amended by me.
The order proffered is deficient in identifying what ought to be posted to the defendant as no more than the claim and in not providing the defendant with a plainly necessary explanation of what is happening by including a copy of the court's order for substituted service.
In my view, the order ought to indicate a time when service under it is taken to be effective for purposes of rule 116(3) and that ought to be one business day longer than what's customarily specified, given that the plaintiff's lawyers are in Melbourne so that service by post may take longer.
I think that advantage ought to be taken of the email address supplied by the defendant in his letter to send a second copy of relevant documents to the defendant by use of that means, although the order suppled seeks an order that the defendant pay the plaintiff's costs. I think it's preferable in the circumstances that they be the plaintiff's costs in the cause.
It ought to be placed on record that I happen to be a customer of the plaintiff thanks to its take-over a few years ago of a local financial institution, which development, for what it's worth, I was opposed to. That connection, in my opinion, doesn't affect the way in which the application should be or has been dealt with by me.
The changes to the order proffered are of such dimensions that the plaintiff ought to supply the Registry with a re-engrossed version for use there. For purposes of that exercise, the order of the court is that:
- (1)Substituted service of the claim and statement of claim be effected upon the defendant by posting copies of them together with a copy of this order to his postal address at PO Box 6239, Upper Mt Gravatt, Queensland, 4122 and by sending copies of the same electronically to [email protected];
- (2)Service be deemed effective 3 business days after completion of the steps described in paragraph (1) above;
- (3)The plaintiff's costs of this application for substituted service be its costs in the cause.
I've initialled a draft in those terms to signify the making of the order in court today.