Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2017
  4. Secure Funding Pty Ltd v Spaans - [2017] QDC 281

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Secure Funding Pty Ltd v Spaans[2017] QDC 281

Secure Funding Pty Ltd v Spaans[2017] QDC 281

DISTRICT COURT OF QUEENSLAND

CITATION:

Secure Funding Pty Ltd v Spaans [2017] QDC 281

PARTIES:

SECURE FUNDING PTY LTD (ACN 081 982 872)

(applicant/plaintiff)

v

RICHARD JOHN SPAANS

(respondent/defendant)

FILE NO/S:

2208/17

PROCEEDING:

Application for default judgment

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2017 - Application without oral hearing

JUDGE:

Rafter SC DCJ

ORDER:

Application adjourned to a date to be fixed.

CATCHWORDS:

PROCEDURE – UNIFORM CIVIL PROCEDURE RULES – SERVICE – SERVICE UNDER CONTRACT – where the plaintiff filed an application for default judgment – where the plaintiff seeks an order that the defendant was deemed to be served with the claim and statement of claim pursuant to r 119 UCPR – where the plaintiff posted the documents to the defendant – where the contract permitted service by delivery to the property or by leaving it there – where the plaintiff applied for the application to be heard without an oral hearing – where no written submissions filed in support of the application – whether procedure has been complied with

Uniform Civil Procedure Rules 1999 (Qld), rr 119 and 490

SOLICITORS:

Results Legal for the applicant/plaintiff

No appearance by or for the respondent/defendant

The plaintiff’s claim

  1. [1]
    On 21 June 2017 the plaintiff filed a claim for recovery of possession of land at 32 Mill Street, Giru in Queensland, the sum of $59,594.25 being monies due and owing pursuant to a loan agreement, and interest.
  1. [2]
    On 6 September 2017 the plaintiff filed an application for substituted service pursuant to rr 116 and 119 Uniform Civil Procedure Rules 1999 (“UCPR”).  That application was dismissed by Judge McGill SC on 25 September 2017.

The present applications

  1. [3]
    On 16 November 2017 the plaintiff filed an application seeking the following orders:
  1. That the defendant was deemed to have been served with the claim on 9 October 2017 pursuant to r 119 UCPR;
  1. That default judgment be entered against the defendant pursuant to r 283 UCPR;
  1. Costs reserved.
  1. [4]
    On the same date, the plaintiff filed a Request that the registrar give judgment in default of the defendant filing a notice of intention to defend.

Procedural issues

  1. [5]
    It is not clear why the plaintiff filed both a request that the registrar give default judgment and an application to the court for default judgment.
  1. [6]
    Rule 283 UCPR enables a plaintiff to file a request for judgment by default for a debt or liquidated demand, with or without interest. The court, as constituted by a registrar, may give judgment.[1]However, the rate of interest is limited by r 283(4).
  1. [7]
    The court, as constituted by a registrar, may also give judgment where the plaintiff’s claim for relief is for the recovery of possession of land only.[2]However, judgment by default cannot be given by the registrar if the plaintiff’s claim is for delivery of possession under a mortgage.[3]A registrar may give judgment by default where there are mixed claims for relief in respect of two or more claims pursuant to rr 283 to 286, and no other claim.[4]

Service

  1. [8]
    The plaintiff seeks an order to the effect that the defendant was deemed to have been served with the Claim and Statement of Claim on 9 October 2017 pursuant to r 119 UCPR.
  1. [9]
    Rule 119 provides, so far as is relevant:

“119 Service under contract

  1. (1)
    This rule applies if—
  1. (a)
    before a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party, or someone else for the party, in a way or at a place, in Queensland or elsewhere, specified in the agreement;

…

  1. (2)
    The document may be served in accordance with the agreement.”
  1. [10]
    On 21 November 2007 the defendant signed a mortgage in favour of the plaintiff in relation to the property at Giru. The terms and conditions of the mortgage are set out in a document titled “Residential Mortgage Memorandum.” The Standard Terms Document was registered pursuant to s 169 Land Title Act 1994. Clause 29.6 provides:

“29.6We 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. This clause does not prevent any other method of service.”

  1. [11]
    On 3 October 2017 the solicitors for the plaintiff posted a letter to the defendant at his address at Giru enclosing a copy of the Claim and Statement of Claim. The letter was sent by express post.[5]
  1. [12]
    Clause 29.6 does not expressly provide for service of court documents by post. The clause permitted service by “delivering it to the property or by leaving it there”.
  1. [13]
    Clause 29.6 is similar to the clause that was considered by the Court of Appeal in Oliver & Anor v Citigroup Pty Ltd.[6]The clause in that case permitted service by delivery to the property or by leaving it there. The Claim and Statement of Claim were delivered to the property and affixed to the front door of the dwelling.[7]
  1. [14]
    The applicants in Oliver contended that personal service of the Claim and Statement of Claim was required. Gotterson JA said:

“[14] Rule 119(1)(a) permits service of a document relating to a proceeding in accordance with a specific method of service, so long as the parties to the proceeding have agreed to that method before the proceeding starts. There is no basis for construing the plain and comprehensive language of the rule as subject to an implied exception in the case of a claim and statement of claim. I reject Mr Oliver’s submission of error on the part of the learned primary judge in construing r 119.”[8]

  1. [15]
    Clause 29.6 did not permit service of the Claim and Statement of Claim by post. Accordingly, service has not been effected in accordance with r 119. Clause 29.6 is contained in a section of the Residential Mortgage Memorandum dealing with “General matters”. Clauses 29.1 to 29.6 appear under the heading “Notices, other communications and service of documents”. Clause 29.3 relates to communications by the mortgagee to the mortgagor. That clause provides:

“29.3Communications to you may be:

  1. (a)
    given personally (if you are a company, to one of your directors); or
  1. (b)
    left at your residential or business address last known to us; or
  1. (c)
    sent by post to your postal or residential or business address last known to us; or
  1. (d)
    sent by fax to your residential or business fax number last known to us; or
  1. (e)
    given in any other way permitted by law.”
  1. [16]
    The fact that clause 29.3(c) permits communications to the defendant by post supports the conclusion that I have reached that service of court documents pursuant to clause 29.6 should be carried out strictly in accordance with that provision.
  1. [17]
    Accordingly, the Claim and Statement of Claim have not been served in accordance with r 119 UCPR.

Application without oral hearing

  1. [18]
    Rule 490(1) UCPR provides:

“490 Procedure for making application

  1. (1)
    If the applicant proposes an application be decided without an oral hearing, the application must—
  1. (a)
    include a notice in the approved form; and
  1. (b)
    be accompanied by a draft order and written submission in support.”
  1. [19]
    The plaintiff did not file written submissions in support of the application. Rule 490(1)(b) requires that the application be accompanied by written submissions.
  1. [20]
    The application was accompanied by a draft order in which the plaintiff sought payment of $62,195.25 including interest of $2,674.97 as well as costs of $2,601.00. However the application filed 16 November 2017 stated that the plaintiff sought an order that costs be reserved.[9]
  1. [21]
    The filing of written submissions will assist in the determination of the issues to be decided.

Disposition

  1. [22]
    In the circumstances, the application should be adjourned to a date to be fixed.

Footnotes

[1]Rule 283(3) UCPR.

[2]Rule 286 UCPR.

[3]Rule 286(4) UCPR.

[4]Rule 287 UCPR.

[5]Affidavit of Kellianne Chantelle Uglow filed 16 November 2017 at para 12.

[6][2016] QCA 261.

[7][2016] QCA 261 at [13].

[8][2016] QCA 261 at [14].

[9]Application filed 16 November 2017; Court Document no. 5 at para 3.

Close

Editorial Notes

  • Published Case Name:

    Secure Funding Pty Ltd v Spaans

  • Shortened Case Name:

    Secure Funding Pty Ltd v Spaans

  • MNC:

    [2017] QDC 281

  • Court:

    QDC

  • Judge(s):

    Rafter DCJ

  • Date:

    23 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Oliver v Citigroup Pty Ltd [2016] QCA 261
3 citations
Jump To
Cite 1 - [2016] QCA 261
Cite 2 - [2016] QCA 261
Cite 3 - [2016] QCA 261

Cases Citing

Case NameFull CitationFrequency
Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 162 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.