Pilling v Shajahan Karim LLB[2020] QDC 306

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By way of Application filed in this Court on 12 August 2020, the plaintiff ultimately seeks default judgment in respect of her Claim, which was filed together with a Statement of Claim on 29 August 2019.  Such judgment is sought in default of the filing of any notice of intention to defend, by each of the first, second and third defendants. The Application for default judgment and costs of that and an earlier Application for the entry of default judgment by the Registrar, was first returned for hearing in this Court on 21 August 2020, where, upon there being no appearance for any defendant, it was reserved, subject to the applicant filing a written outline of submissions and any additional material to be relied upon. Additional written submissions were filed in this Court on 27 August 2020.
2. [2]
   There are five claims included by the plaintiff in her Claim and Statement of Claim, but not all are made against each of the defendants.  In her Statement of Claim, the plaintiff is described as a divorced pensioner residing at Noosaville and it is alleged that the first defendant, “was and is [and represented himself as] a solicitor of the High Court of the United Kingdom” and the director and sole shareholder of the second and third defendant companies. 
3. [3]
   Attempting to succinctly summarise the plaintiff’s discursively and narratively pleaded claims, is not without difficulty. However the following is an attempt to capture what appears to be the gravamen of them:

   1. (a)
      Recovery of US$50,000 (AUD$73,777.50):^[1]

“invested or contributed by the Plaintiff to the Second Defendant at the rest of and pursuant to representations made to the Plaintiff by the First Defendant pursuant to a Joint Endeavour Agreement (the Agreement”), entered into between the Plaintiff as ‘Investor Partner’, and the Second Defendant as ‘Developer’ and executed on behalf of the Second Defendant by the First Defendant, and entered into by the parties at Noosaville Queensland in this District.”^[2]

And also, loss of “investment return” of 20% per annum, calculated to 30 September 2019, as US$124,416.00 (AUD$198,832.00).^[3]

2. (b)
   Recovery of US$53,000 (AUD$78, 204.15):

“against the First Defendant by way of unjust enrichment received by the First Defendant as a result of the First Defendant taking advantage of his position as a Claimant’s Solicitor and Agent and Attorney in purchasing the Claimant’s property [in Michigan USA and described as “Westchester” and on-selling it] without notice or knowledge of the Plaintiff, on 19^TH day of July 2019, receiving, keeping and retaining  the difference of US$53,000 for the First Defendant’s own use and benefit  in breach of [his] duties of upmost(sic) good faith to the Plaintiff, to act solely in the interest of the Plaintiff.”^[4]

And also, interest calculated from 19 July 2017 to the date of the Claim, at AUD$87,246.92, together with the following express claim:

“…. that the said Contract for the sale of Westchester by the Plaintiff to the First Defendant was entered into having been executed  by the Plaintiff in this District after execution of the same by the First Defendant.”^[5]

3. (c)
   Recovery of US$45,105 (AUD$66,664.68) for: 

“…. monies deducted from or taken from the Plaintiff’s monies by the First Defendant as Solicitor and/or Agent and/or Attorney for the plaintiff and paid to the Second Defendant for alleged repairs or improvements or other expenses allegedly relating to the Plaintiff’s [properties, in Michigan USA and respectively referred to as “Decatur” and “Westchester”], from the 19^th day of March 2014 to the 9^th March 2018, without the Plaintiff’s prior knowledge or approval, and for which no proper accounting for or evidence of the actual payees of those monies has been given by the Defendants to the Plaintiff.”^[6]

And also, interest in the calculated sum of US$45,105.00 (AUD$82,169.74).^[7]

4. (d)
   Damages:

“arising from the loss of Contract of Sale (the Decatur Contract) …. which  was frustrated by the actions of the First and Second Defendants [by placing a tenant in the property after termination of their] Management Agreement and execution of the Decatur Contract, including such rent as was or should have been payable by the tenant [calculated at US$6000.00] plus repairs of damage to the property caused by the tenant (US$2,420.00) plus interest on US$27,900.00  from 30^th May 2019 to the date hereof of (US$36,320.00)(A$41,196.81) at the court rate totalling A$54,330.91 at the current exchange rates”.^[8]

5. (e)
   Exemplary or punitive damages in the sum of AUD$100,000.00 against the first defendant for his breach of fiduciary duties owed to the plaintiff “whilst [he] was acting as her Solicitor and/or Agent in relation to her financial circumstances and dealings”.^[9]

4. [4]
   Further and far from positively contributing to any sense of further clarification or simplification of the bases of the plaintiff’s claims, the fifth claim is followed by a claim for interest and a summary of her claims, as follows:

Plus further interest pursuant to the Agreement @20% per annum on Claim 1 and on Claims 2-5 pursuant Section 58 of the Civil Proceedings Act 2011 at the applicable rates from the date hereof to the date of payment of Judgment.”^[10]

5. [5]
   The plaintiff’s Claim and Statement of Claim were filed in this Court on 29 August 2019. The plaintiff sought to effect service outside of Australia at addresses in the United Kingdom and the United States. As the applicant’s Claim relates to actions in personam, the common law rule is that service of the originating process may not be served out of Queensland unless authorised by legislation.^[11] In respect of service outside of Australia it is the provisions in Part 7 of Chapter 4 of the Uniform Procedure Rules 1999 (“UCPR”) and which incorporate the involvement of Australia in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (“the Hague Convention”). The applicant has not attempted to effect service pursuant to those provisions and expressly contends that this “would have been a more costly and time consuming process” and would have created issues to “communicate with the Birmingham process server, give him directions or chase him up”.^[12] 

6. [6]
   On 8 July 2020, the applicant filed a request for default judgement against the first defendant in the sum of $568,805.70, including costs in the amount of $1,431.68. Otherwise the judgement sum was expressed to be “calculated in accordance with the particulars in the statement of claim calculated as follows:

 Claim 1                    $198,832.00

Plus Interest @ 20% p/a pursuant to Agreement as alleged in

 Claim and Statement of Claim from 27/08/2019 to 3/07/2020  $  33,790.57

 Total of Claims 2 to 5               $323,747.57

 Plus Interest on Total Claims 2 to 5 at default rate of 4% p/a  

 from 27/08/2019 to 3/07/2020            $  11,003.88

 Total claim and interest to 3/07/2020              $567,374.02”^[13]

7. [7]
   It is apparent that there were are number of difficulties with this Application, not the least of which was identified in the Registrar’s Notice of Refusal, being the appearance of absence of proof of personal service as required by UCPR 105 and 106. Although that Application was supported by an “Affidavit of Service and Enquires”,^[14] it was, after reference to failure “to locate the First Defendant or any property registered in his name at which he might be found”^[15] or that the second or third defendants were operating at any of several addresses given “in promotional material published by [them]”, in the United Kingdom, deposed that:

“ ... at 11.30am on the 13^th May 2020 I attended with my colleague Christopher Atkinson at a residence provided to me as the residence of the First Defendant’s parents, 82 Church Lane Handsworth Wood Birmingham, and after knocking a person who looked very much like the First Defendant (as pictured in photographs provided to me by the Plaintiff’s Solicitors) came to the door. I was standing next to Mr Atkinson when he asked the person at the door “Are you Shajahan Karim?” and the person replied that he was his brother, but that his brother (the First Defendant) was inside the house.

Mr Atkinson then said “I have some documents here for Mr Karim, will you give them to him?” The person served said “Yes I will take them in”, and received the sealed copies of the Claims & Statement of Claim open for inspection with the Notice under the Service and Execution of Process Act attached to the front.”^[16]

8. [8]
   Leaving aside the extraterritorial considerations, this was insufficient evidence of personal service as required by UCPR 282, so that default judgement sought by the applicant may have been given. It may also be noted that the Application for default judgment had been problematically expressed to be brought pursuant to UCPR 283287 and 289, but also for “debt liquidated claim”. That is, in respect of any monetary sum which is ascertained or capable of being ascertained by calculation by the use of a formula, rather than being ascertainable only by an assessment which involves the exercise of a discretion or an opinion.^[17] 
9. [9]
   Next and in response to a suggestion raised in the Deputy Registrar’s Notice of Refusal, the applicant filed an Application on 27 July 2020 for the allowance of informal service upon the first defendant, pursuant to UCPR 117. In addition to the earlier filed affidavit of the process server in Birmingham, some further material was filed to support contentions that no confirmation could be found of the legal qualifications said to have been claimed by the first defendant, his elusiveness and what is said to be the financial distress being experienced by the applicant in the absence of her realisation of her Michigan investments. That Application was subsequently superseded by the Application filed 12 August 2020, which is now before the Court in respect of the issue of service on all three defendants.
10. [10]
    However and prior to that Application and on 27 July 2020, the applicant also applied for default judgment against the second and third defendants. Again the Application is in express reference to UCPR 283-287 and 289 and also for “debt liquidated claim”. It is convenient to note that whatever may be said as to claims 1 to 4, to the extent that the causes of action involved are clarified, it necessarily follows that claim 5 may not be described as being for a debt or liquidated sum.
11. [11]
    The judgment sum sought against both defendants is $570,521.47 and expressed to be calculated as follows:

[12]  Because each of the United Kingdom and United States of America is a “Hague Convention Country”, within the meaning of that defined term in UCPR 130A,^[21] the Deputy Registrar’s Notice of Refusal of that Application, dated 29 July 2020, draws attention to the Hague Convention and Chapter 4, Part 7, Division 3 of the UCPR, and states:

“In all instances, an application for service of documents overseas needs to be made to the Supreme Court. If the service relates to a matter in the District Court or Magistrates Court, the application is to be treated as an originating application. (Form 5) There is no fee payable to file the originating application with the Supreme Court. Additionally, you need to file in triplicate a Form 10A, 10B and 10C. You should contact the Supreme Court if you have any further queries in relation to the process.

As service has not been effected in accordance with The Hague Convention your request for default Judgment against the second and third defendant is refused.

Please also advise whether you wish to proceed with your application to the Court for Informal Service in relation to the first defendant as service was not effected in accordance with the Hague Convention.”

[13]  However, it is made expressly clear for the applicant that her Application is seeking to avoid the strictures and requirements of those provisions, albeit in expressed desire to alleviate what is asserted to be her parlous circumstances and in expectation of vindication of what are contended as her valid claims, upon what is also contended to have been effective service on the defendants. For instance, there are the following, albeit somewhat argumentative, assertions in the affidavits filed by the solicitor for the applicant:

“I also say that all three (3) Defendants have been effectively served with these proceedings, and if the First Defendant has legal qualifications he purports to have, he should have complied with the notices given in the Court proceedings to file a Notice of Intention to Defend and Defence and also to properly object to this jurisdiction of this Court, and I further say that it would be a travesty of justice if the Plaintiff is further delayed in recovering the damages she has suffered as a result of the Defendants’ action, and should be allowed to proceed to judgment notwithstanding the objection to jurisdiction, allow the informal service on the Defendants as per the Plaintiff’s Applications, and also allow the Plaintiff’s request for Judgment by Default to proceed.”^[22]

And further, at page 4 of the Applicant’s Written Submissions, filed 27 August 2020, it is contended:

“I say that it would have been an unnecessary and expensive as well as a lengthy process for the Plaintiff to have to apply to the Supreme Court for Orders that the Supreme Court then forward the documents to the Court in Michigan for the Court in Michigan to then send the documents by certified post to the Second & Third Defendants at their registered offices, and then the Plaintiff would have to wait for the reply from the District Court of Michigan to the Supreme Court of Queensland and then wait for the reply from the Supreme Court of Queensland to this firm regarding that service having been effected. The same considerations apply to delays and costs of Hague Convention service of the First Defendant.”^[23]

The Application

14. [14]
    It is in this context that the Application, filed on 12 August 2020, and which is now before this Court, is as follows:

“1.  That the Court allow informal service to have been effected upon all the Defendants pursuant to Rule 117 of the Uniform Civil Procedure Rules and particularly based on the following rules.

2. That pursuant to Rule 107, service on the Second & Third Defendants as companies is deemed to be effected pursuant to the Plaintiff having posted the Claim & Statement of Claim to the Second & Third Defendants to the companies’ registered offices pursuant to s 109X(i)(a) of the Corporations Act and pursuant to Rule 112(d) by posting it to the relevant address, which pursuant to sub-rule 112(3)(c) for the corporations are the corporations head office or its principal or registered offices.
3. That pursuant to Rule 125, the originating process may be served outside Australia without leave under sub-rule 125(n) as Claim 1 was based on the Joint Venture Agreement entered into between the Plaintiff and the First Defendant at Noosaville in this District and pursuant to sub-rule 125(s) the Claim so far as it concerns the First Defendant falls partly or within one or more of paragraphs (a) to (r) and specifically paragraph (n) and as to the residue within one or more the others from paragraphs (a) through (r) and including Rule 125(f) relating to breaches of trust of the written instrument which ought to be carried out or discharged in accordance with Australian law by the First, Second & Third Defendant pursuant to Claims 2 through to 5 inclusive.
4. That pursuant to Rule 125F informal service of the originating process in this matter may be served outside Australia without leave as pursuant to sub-paragraph (n) thereof, Claim 1 is founded on a cause of action arising in Queensland in that the Joint Venture Agreement between the Plaintiff and the First Defendant was entered into at Noosaville Queensland in this District.

5. That pursuant to sub-paragraph 125F(r), the Claim so far as the First, Second & Third Defendants falls partly within one or more of paragraphs (a) to (q) (that is paragraph (n)) and further that the breaches of trust alleged by the Plaintiff against the First, Second & Third Defendants arose pursuant to their failure to discharge the trusts on the written instrument which was entered into in this District pursuant to sub-paragraph (f) such breaches being effected by the First, Second & Third Defendants as alleged by the Plaintiff in Claims 1 through to 5 inclusive.
6. That pursuant to informal service having been allowed on the First, Second & Third Defendants and proven as per the Affidavit of Daniel John Gibbin sworn 28^th May 2020 and the Affidavits of Christopher Parker Reeve sworn 23^rd July 2020 and (sic) day of August 2020 filed herewith that Default Judgment be granted against the First, Second & Third Defendants.
7. That the costs of this Application and the Application filed 27^th July 2020 be granted and awarded to the Plaintiff in addition to the costs of Default Judgment.
8. Such further or other Orders as to this Court may seem just.”

(emphasis omitted)

15. [15]
    In his affidavit filed with that Application,^[24] the solicitor for the applicant effectively contends for findings that in circumstances where this proceeding may be served without the leave of the court pursuant to UCPR 129F(f) and/or (n), there has been informal service on the first defendant pursuant to UCPR 117 and that service has been effected upon the other corporate defendants pursuant to UCPR 112. In support of these contentions, reliance is placed upon:

    1. (a)
       The affidavit of Mr Gibbon (the Birmingham process server); and
    2. (b)
       In addition to contending that the first defendant is a director of each of the other corporate defendants and the earlier provided evidence of the sending of the documents by post to identified addresses in respect of the corporate defendants, there is reference to:

       1. (i)
          A printout of a website which links the company “Sovereign & Co” to a location in Birmingham UK and also the address to which correspondence was forwarded in Michigan US; and
       2. (ii)
          An email chain said to have resulted in the applicant’s solicitor being:

“informed by Jelani Karamoko Esquire, Attorney practicing at 535 Grisword Suite 2300 Detroit Michigan 48226 USA and verily believe that it is proper and effective service upon a corporation for process to be posted by prepaid envelope to the corporation at its registered office or place of business…”

It should be noted that the email is in response to the request of the applicant’s solicitor that “I really need Jelani to email me to say it’s satisfactory service of legal processes upon a company in Michigan to post it to its reg’d office or principal office/place of business”. And the response, noted to be by “Jelani Karamoko Esq” of “Karamoko Group PLC” with reference to an address in Detroit Michigan, was:

“Hello Chris, yes service is proper by certified mail to the registered office and addressed to the resident agent of the Michigan company.

Thank you and let me know of any other questions”; and

3. (iii)
   What is mistakenly asserted to be acknowledgment by “email letter from the Law Offices of Dean Koulouras…” in which he states that he acts for the third defendant and otherwise acknowledges receipt of the originating process. What is actually stated in the letter from Mr Koulouras is:

“I represent Detroit Investment Company. My client recently received some documents labelled “Claim” from the District Court of Queensland. You will need to contact the U.S. Department of State to determine how to obtain service of process on my client. I recommend that you dismiss Detroit Investment Company from the lawsuit and refile in the Wayne County Circuit Court, which is in the appropriate court of jurisdiction.

In order to save you some time and expenses, my client never represented the property in issue, If you have some documentation that indicates otherwise, please forward a copy to my attention.”

[16]  It is also necessary to note that there is no cause of action identified in the applicant’s Claim, as made against the third defendant. And neither can it be said that this position is meaningfully advanced in the Statement of Claim. The only reference to the third defendant is in respect of the second claim, on the basis of assertions that:^[25]

1. (a)
   the applicant engaged the first defendant to sell her property at 1631 Westchester Street Westland Michigan (“Westchester”);

2. (b)
   by contract dated 18 January 2017, she sold that property for $65,000;
3. (c)
   the purchaser executing that contract, was “the First Defendant on behalf of the Third Defendant ‘Detroit Invest Corp’; and

4. (d)
   an internet search indicates the on-sale of that property “for US $118,000 registered after settlement on 19 July 2017 without registration of the intervening purchase by the Third Defendant from the Plaintiff for US $65,000”.

It is later pleaded:

“[49] In the circumstances the Plaintiff has been deprived of the profit of which the First, Second and/or Third Defendant made at the expense of the Plaintiff of US$53,000.00 from the 10^th July 2019 and claims that amount together with interest thereon to the date of payment of Judgment pursuant to Section 58 of the Civil Proceedings Act.”

However and whilst there are some contextual pleadings as to the first defendant’s relationship as attorney and agent of the applicant, and representations as to his association with something referred to as “Detroit Invest”, there is no pleading as to any basis upon which the third defendant is liable to the applicant, or even as to it being an entity capable of being sued.^[26]

17. [17]
    In addition to what has been noted as to the evidence before the Court as to attempts to personally serve the first defendant, the following is also deposed by the applicant’s solicitor (without the described correspondence being exhibited):^[27]

“I received an email letter from the First Defendant which also stated that he was writing on behalf of ‘Sovereign & Co’ on the 19 May 2020, which was a four(4) page letter and part of which was headed ‘jurisdiction’ with a later sub-heading ‘moving forward’ as is sighted in his ‘letter’ to Plaintiffs’ Solicitors regards jurisdiction’. I respectfully refer this Honourable Court to the fact that the First Defendant states that he emailed this letter to me on the 18 May 2020, which I note was a short time after his brother was personally served and thereafter I would submit he was formally served with these proceedings on the 13 May 2020, which enlivened his response, and I therefore say that he has full notice of and has effectively been served with these proceedings.”

18. [18]
    Subsequently and in the written submissions of the applicant,^[28] it is effectively contended that it is to be inferred from this evidence that the first defendant “was obviously thereby acknowledging service of the proceedings”. And it is then further contended that:

“This is further evidenced by his recent email to the Court referred to in my Affidavit sworn today and filed herewith, on which he confirms he wrote to me on 18 May 2020 complaining about the plaintiffs choice of jurisdiction. I therefore submit that the First Defendant came into possession of the Claim and Statement of Claim on 13^th day of May 2020 and the court should be satisfied he has been informally served pursuant to r 117. To have applied to the Supreme Court for Hague Convention Orders would have been a more costly and time consuming process and I would not have been able to communication with the Birmingham process server, give him directions or chase him up.”^[29]

19. [19]
    That is in reference to a communication received at the Registry of the District Court at Maroochydore, on 19 August 2020 and therefore shortly prior to the allocated return date of the Application (filed 12 August 2020), on 21 August 2020. In accordance with the directions of the court, that correspondence, which purported to be an email from “Shajahan Karim” and the email address “ShahKarim<[email protected]>, was emailed to the applicant’s solicitor and also by response email, it was indicated that this had occurred, that the court “would give due consideration” to the correspondence at the hearing and that the sender of the email was permitted to appear at that hearing “at 11.15am (Qld time) on Friday 21 August 2020”, by telephone (with details as to doing so by “Chorus Call” provided).  
20. [20]
    It may be observed that despite there being in the court room, at or shortly after 11.15am and when hearing this Application on 21 August 2020, some familiar audible indicia of external engagement of the Chorus Call facility, there was no response to any of multiple invitations of the Court for anyone who had so engaged the Chorus Call facility to identify themselves.^[30]
21. [21]
    At that hearing on 21 August 2020, the applicant’s solicitor did not seek to tender the email correspondence which had been provided by the court.  Accordingly, a copy of the correspondence, including and related to that email, was marked “A”, so as to be identified and retained with the record.  When the matter was then reserved for decision that was subject to directions that the applicant file a written outline of submissions and any further material to be relied upon.  It would therefore appear that the applicant now seeks to rely upon the materials marked “A”, particularly in the light of the following assertions in the further affidavit of her solicitor:^[31]

“With regard to the question of service upon the First Defendant, I respectfully refer this Honourable Court to the email letter sent to this Court by the First Defendant, whom I asked the Court to take notice is also the principle officer of the Second & Third Defendants, dated 18 August 2020 and referred by this Court to me, in which he states that he has become aware of these proceedings against him and his companies.  I also say that his implication that he only became aware as a result of an on-line search is a subterfuge, as it is highly unlikely that a person would search your Court on-line without some prior notice of these proceedings.  I also refer to my earlier Affidavit sworn 20 August 2020 in which I point out that the First Defendant’s email letter to me dated 18 May 2019 was almost certainly prompted by his having been served (the documents having been delivered to his brother whilst he was inside the same premises) on 13 May 2020 by Daniel Gibbin.”

The email to which reference is made and the attachments to it, which include a copy of the email dated 18 May 2019 (as those documents were forwarded by the Deputy Senior Registrar to my associate on 19 August 2020), are annexed to these reasons.  

22. [22]
    Salient features to note include that there is express reference to the parties named in and number assigned to the Claim filed on 29/8/19 and the registry in which it was filed. Whilst all of the information is available upon the Queensland Courts website as e-file information, there is no direct explanation as to what prompted the online search, to which reference is made. Also and in the context of reference to “a case filed in the 3^rd Circuit Court of Wayne County, Michigan, USA”, it is asserted:

“The claim is concerning the Plaintiff’s USA property located in the State of Michigan, USA and she contracted for property management and building services to her property undertaken by the defendants located in the State of Michigan, USA.”

And that it is otherwise contended for various reasons, that this Court does not have jurisdiction in respect of the plaintiff’s claims.

Discussion

23. [23]
    As has been noted, the ultimate aim of the Application filed on 12 August 2020, is to obtain default judgment against the named defendants. Quite apart from what has already been noted as to the absence of specification as to which of the provisions of Chapter 9, Division 2 of the UCPR would authorise or provide the power to grant any such judgment, it is to be noted that pursuant to UCPR 281, the application of the division is premised upon the consideration that there has been no filing of a notice of intention to defend in response to a claim “and that the time allowed under rule 137 to file the notice has ended”. Also and  pursuant to UCPR 282, it is provided that:

“A plaintiff must prove service of a claim on a defendant in default before judgment may be given under this division against the defendant.”

However and in respect of the service of originating process outside of Australia, it is necessary to have regard to UCPR 128 and 129,^[32] in that:

1. (a)
   UCPR 129 makes Chapter 5 of the UCPR, which relates to notices of intention to defend and related matters and includes UCPR 137, applicable, subject to the consideration that:

“Unless the court orders otherwise, rule 137 applies to the proceeding as if the reference in rule 137(1) to 28 days were a reference to 42 days”; and

2. (b)
   UCPR 128 requires that any originating process to be served outside of Australia to be served with “a notice in the approved form informing the person of—

   1. the scope of the jurisdiction of the court in respect of claims against persons who are served outside Australia; and
   2. the grounds alleged by the plaintiff to found jurisdiction; and
   3. the person’s right to challenge service of the originating process or the jurisdiction of the court or to file a conditional notice of intention to defend.”

It is further provided that if the service is “by leave of the court, the notice must list the affidavits relied upon to obtain the court’s leave”.               

24. [24]
    Accordingly, it may be noted that it is necessary to notify a served defendant as to the basis upon which it is contended that the jurisdiction of the court is engaged. An immediate problem here is that the notice which is attached to the Claim does no such thing. This is primarily because it is not in the form of a notice which could be approved under UCPR 128 but rather an adaption of a form to be used as is expressly stated when:

“Service of the attached process outside Queensland is authorised by the Service and Execution of Process Act 1992”.

That Act does not authorise service of process outside of Australia, as opposed to service within Australia but outside the State or Territory in which the process is issued. There are also other difficulties relating to the lack of adaption of alternatives in the form, to the particular circumstances, and an inapt reference to 21 days to “file an appearance”.

25. [25]
    Otherwise, there are two essential aspects to this Application. In the first instance, that service of the originating process is permitted without the necessity for a grant of leave to do so. And ultimately, that there has been informal service, in accordance with UCPR 117. Although varying references are made to UCPR 125, 125(f) and 125F, it is the application of UCPR 129F which would allow for service of this originating process without the leave of the Court. This is because pursuant to UCPR 129E, it is Subdivision 2 of Division 1 of Part 7 of Chapter 4, which is applicable to District and Magistrates Courts proceedings. 
26. [26]
    Such leave may be obtained pursuant to UCPR 129G and it is convenient to note that in order to do so and in effecting the service for which leave is granted, it is necessary that:

27. [27]
    Some attention is required to the structure and interaction of the provisions of Chapter 4 of the UCPR. In the first instance, this is because UCPR 117 is found in Part 5 of Chapter 4, noting that it is the successive Parts 6 and 7 which separately deal with extraterritorial service, respectively in respect of service outside of Queensland and Australia. It may be noted that some of the provisions in Part 5, including UCPR 117, allow for various departures, by court order, from the earlier specified requirements for service within Queensland and as provided in Parts 1 to 4. The Deputy Registrar’s initial reference to UCPR 117 may be understood in noting that the rule is expressed to apply and operate as follows:

[28]  However and as appears from the later response to the request for default judgment filed on 27 July 2020, “further enquiries” resulted in the applicant’s attention being particularly drawn to Chapter 4, Part 7, Division 3 of the UCPR. That Division contains UCPR 130B which provides:

29. [29]
    Division 3 applies to service under the “Hague Convention”, defined in UCPR 130A as “the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965”. And the notes immediately after the heading to “Subdivision 1 – Preliminary”,  indicate as follows:

“Notes—

1. This division was developed by the Council of Chief Justices’ Rules Harmonisation Committee and forms part of a scheme to implement Australia’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or

Commercial Matters. Under the convention, the Attorney-General’s Department of the Commonwealth is designated as the Central Authority (under article 2 of the Hague Convention) and certain courts and government departments are, for certain purposes, designated as ‘other’ or ‘additional’ authorities (under article 18 of the Hague Convention).

2. This division provides (in subdivision 2) for service in overseas Hague Convention countries of local judicial documents (documents relating to a proceeding in the Supreme Court, the District Court or a Magistrates Court) and (in subdivision 3) for default judgment in a proceeding in the court after service overseas of such a document. Subdivision 4, on the other hand, deals with service by the Supreme Court or arranged by the court in its role as an other or additional authority, of judicial documents emanating from overseas convention countries.
3. Information about the Hague Convention, including a copy of the Hague Convention, a list of all Hague Convention countries, details of declarations and reservations made under the Hague Convention by each of those countries and the names and addresses of the Central Authority and other or additional authorities of each of those countries, may be found on the website of the Hague Conference on Private International Law.”

30. [30]
    Reference to the Hague Convention, to which Australia, the United Kingdom and the United States of America are each party, confirms a requirement of service in accordance with it, except “where the address of the person to be served with the document is not known.”^[33]
31. [31]
    It should also be noted that UCPR 129D provides that:

“A document to be served outside Australia need not be personally served on a person as long as it is served on the person in accordance with the law of the country in which service is effected.”

32. [32]
    An essential difficulty with the applicant’s approach in respect of the issue of service on the second and third defendants is in the attempt to rely upon laws which are applicable to service in Australia, in the context of expressly seeking to avoid engagement of the Hague Convention provisions in Division 3. Accordingly, resort to s 109X of the Corporations Act 2001 (Cth) and UCPR 107 and 112, are of no avail to the applicant.

33. [33]
    Further, the tersely expressed email from Mr Karamoko, does little to properly engage UCPR 129D. And an underlying flaw in the applicant’s approach is that no attempt is made to establish any registered address of the corporate defendants by reference to evidence of any such register or public record and, as has been noted, little regard has been paid to differences in nomenclature, which may well indicate different, even if related, corporate entities. As has been noted above, there is an apparent error of this kind in respect of the correspondence from Mr Koulouras.^[34]
34. [34]
    In the circumstances, there is simply no basis for concluding that there has been any service, informal or otherwise, upon the second or third defendants. Also there has been 
35. [35]
    Also, there has been no attempt to serve the Application filed on 12 August 2020. However and notwithstanding any express such application, having regard to UCPR 129B(2) an application made pursuant UCPR 129B(1), in the absence of the filing of a notice to defend, would not require service of  “notice of the application on the person served with the originating process”. That of course begs the question as to whether there has been such service, informal or otherwise.

36. [36]
    In respect of the first defendant, there may, in the circumstances which have been outlined, be a basis for concluding that the first defendant has knowledge of both the Claim and this Application. There may also and as required by UCPR 117, be a basis for concluding that the documents left by the Birmingham process server have come into his possession and that he has within the meaning of UCPR 117 been informally served with those documents. However and even if it be assumed that UCPR 117 may be relied upon in respect of service outside of Australia, it could only be upon a conclusion that a sued party has come into possession of the document which complies with the requirements of UCPR 128, which for the reasons given above is not available here.^[35] Further, it would not appear to be an appropriate exercise of the Court’s discretion to determine there had been informal service unless the claim was amenable to overseas service, including without the need for first obtaining the leave of the Court to do so.
37. [37]
    This is particularly because it may be discerned that the applicable rules are particularly concerned, from the outset, with the identification of a basis upon which the relevant Queensland Court has jurisdiction in respect of the claim and is an appropriate forum for adjudication of it. For example UCPR 129G(4) provides: “The court may grant leave under this rule if satisfied—

    1. (a)
       the claim has a real and substantial connection with Queensland; and
    2. (b)
       Queensland is an appropriate forum for the trial; and
    3. (c)
       in all the circumstances the court should assume jurisdiction.”

And it is only in the circumstances specified in UCPR 129F and which each depend upon some relevant connection to Queensland, that process may be served outside of Australia without first obtaining the leave of the Court in which the originating process is filed.^[36]

38. [38]
    A further indication of this underlying intent of the rules is to be found in UCPR 128, which more fully provides:

Conclusions

39. [39]
    Despite the indicia of the first defendant’s flirtatious engagement with the Court and irrespectively of the conviction expressed as to the applicant’s entitlement to and need for the prompt engagement of this Court in order to vindicate her rights, and the attention of the Court to rationalisation of the convolutions of the materials relied upon by the applicant, there are substantial impediments to this Application and it is not amenable to being allowed.
40. [40]
    The first difficulty is that what is sought to be determined is informal service of a claim which has been filed with an inapt notice so as to enable overseas service. It is not a notice in or in any way substantially, in the approved form contemplated by UCPR 128. The form used makes express reference to the Service and Execution of Process Act 1992 and incorrectly asserts that:

“Service of the attached process outside Queensland is authorised by the Service and Execution of Process Act 1992”.

It appears to be an adaption of a form which may be applicable to service of originating process in parts of Australia outside of Queensland, by the assertion:

“These proceedings are to be served out of the State of Queensland Australia and in the United Kingdom and the United States of America.” 

41. [41]
    More particularly, there is an absence of any compliance with UCPR 128(1)(a), (b) or (c). And quite apart from any sense of confusion in the document due to the omission or deletion of footnoted alternatives, an inapplicable statement as to a period of “only 21 days” to “file an appearance” to contest the claim, also appears.
42. [42]
    Secondly, there is considerable difficulty in discerning any appropriate basis upon which it is asserted that this originating process was amenable to service outside of Australia, without leave first obtained pursuant to UCPR 129F. Leaving aside the noted difficulty of inappropriate reference to UCPR 125, the equivalent specific references are to UCPR 129F(f) and (n). It can be immediately observed that:

    1. (a)
       there is no justification for reliance on UCPR 129F(f) on the stated basis that “the First, Second & Third Defendants were in breach of their duties and positions of trust owed by the First, Second & Third Defendants to the Plaintiff as a person, corporations and companies respectively having possession and control of the Plaintiff’s monies and assets, in the circumstances that as per the Plaintiff’s Statement of Claim, the First, Second & Third Defendants breached those trusts”^[37] or any other basis; and

2. (b)
   neither is it demonstrated that there is any claim which “is founded on a cause of action arising in Queensland”, pursuant to UCPR 129F(n). As noted in Voth v Manildra Flour Mills Pty Ltd,^[38] whilst it is not necessary that every element of the cause of action has occurred in Australia, the focus is upon the act or omission of the defendant which gives the plaintiff cause for complaint. Leaving aside some difficulty in discernment of precise causes of action for each of the claims made, it may be discerned that the gravamen of particularly claims 2 – 5 relate to acts or omissions which occurred outside of Australia.^[39]

43. [43]
    It would appear that the nexus upon which the applicant seeks to proceed is that she executed a “Joint Venture Agreement” and other documents with the first defendant at Noosaville and otherwise “relied upon promises, statements and representations of the [defendants] received by her in this District”.^[40] Notwithstanding that no such express contention is made, this may be capable of being directed at the engagement of UCPR 129F(b), which in part provides:

  However and perhaps the explanation for the absence of express reference to any equivalent to this provision is in understanding that for there to be a contract that was made or entered into in Queensland, it is necessary to look beyond the mere fact that the applicant dealt with it here in Queensland and necessary to understand how the acceptance of an offer was communicated and the method of that communication, in order to determine the place where that such acceptance was communicated and therefore where the final act regarded as completing the contract occurred.^[41]

44. [44]
    Accordingly the following, as pleaded in the Statement of Claim, is of little assistance in respect of the first claim:

“5.  The First Defendant executed the Agreement on behalf of the Second Defendant on a date unknown, and tendered the Agreement by pose or mail to the Plaintiff, which thereby constituted an offer to enter into the Agreement capable of acceptance by the Plaintiff. 

6. The plaintiff received an original of the Agreement on or about the 1^st day of October 2014, which original was already signed by the First Defendant on behalf of the Second Defendant, and she executed the Agreement on or about the 1^st day of October 2014 at the Plaintiff’s residence at 1/31 Bluefin Court Noosaville Queensland in this District.

7. The Agreement was therefore entered into in this District.”

Otherwise  and whilst made difficult by the narrative style of pleading which follows, including in respect of many representations alleged against the first defendant and references to evidentiary documents rather than material facts, it would appear that this claim may be one for the enforcement of the “Joint Venture Agreement”.^[42] However the effect of UCPR 129F(s) would nevertheless appear to be that this originating process, to the extent it also contains other claims which may not be brought within that rule, prevents the rule from applying to that process.^[43]

45. [45]
    There is no such application made, nor sufficient material to allow consideration of an application for leave to serve the originating process under UCPR 129G. The difficulties which have been noted with the pleadings, including but not limited to the absence of any identified cause of action against the third defendant, might also be relevant to any determination that “in all the circumstances the court should assume jurisdiction”.^[44] Although made in the context of an application made under an analogue to UCPR 127, it may otherwise be noted that observations were made in Borsch v Answer Products Inc,^[45] to the effect that where service without leave is permitted, it is not necessary that a plaintiff’s causes of action be properly pleaded for the purposes of other rules, it being sufficient that the elements of the cause of action are pleaded. 
46. [46]
    Such concerns as to the identification of the basis of the claims sought to be pursued is also relevant to the third concern in respect of the Application and particularly as to the ultimate objective of obtaining default judgment. That is because of the absence of attention to the implications of UCPR 129B,^[46] which assuming that some basis was identified for concluding that there had been relevant service of the originating process on some person outside of Australia, would nevertheless require an application for leave to proceed. And  if the service is required or requested pursuant to the Hague Convention, there are express restrictions set out in UCPR 130J – 130L as to the Court’s power to enter default judgment.
47. [47]
    Fourthly, there would, in any event, remain the difficulty of identification of the appropriate rule under which default judgment might be entered on any particular claim and the need to confront the reality that most of them do not appear to be for a debt or liquidated demand. 
48. [48]
    In these circumstances, it is clear that the approach of the applicant to her claims requires much and careful reconsideration and that her Application filed on 12 August 2020, must be dismissed.

Annexure