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Wickham FV Pty Ltd ACN 611 049 775 v Susanna Wilhelmina Lindeque[2022] QDC 170

Wickham FV Pty Ltd ACN 611 049 775 v Susanna Wilhelmina Lindeque[2022] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

Wickham FV Pty Ltd ACN 611 049 775 v Susanna Wilhelmina Lindeque [2022] QDC 170

PARTIES:

Wickham FV Pty Ltd ACN 611 049 775
(Plaintiff)

v

Susanna Wilhelmina Lindeque
(Defendant)

FILE NO:

1193/22

DIVISION:

Civil

PROCEEDING:

Brisbane

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

  29 July 2022

DELIVERED AT:

Brisbane

HEARING DATE

29 July 2022 (On the papers)

JUDGE:

Porter QC DCJ

ORDER:

  1. Application dismissed.
  2. No order as to costs of the application

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where there is an application for substituted service – where the applicant elected to have the matter heard on the papers – where the affidavit is sworn on information and belief – where the evidence is inadmissible  – where the plaintiff does not establish that the mode of substituted service is likely to bring the proceedings to the attention of the defendant 

SOLICITORS:

Mahoneys for the Plaintiff

  1. [1]
    The plaintiff applicant seeks orders for substituted service.  I refuse that order for three reasons.
  2. [2]
    First, the plaintiff relies on an affidavit sworn by its solicitor.  Some statements in that affidavit which are central to the application fail to meet the requirements for admissibility in Rule 430(2) Uniform Civil Procedure Rules 1999 (‘UCPR’).  In particular, none of the statements contained in the reports from Sharmans and relied upon by the solicitor are admissible.  I will not further to explain the shortcomings in that material.  They are self-evident.  This Court has repeatedly articulated the requirements for admissible evidence on substituted service applications.[1]  Solicitors must familiarise themselves with that law.  A fortiori when it is kept in mind that substituted service applications are brought ex parte.  
  3. [3]
    Second, the plaintiff proposes service on an address, email address and mobile number found on a defence filed in the Supreme Court on 8 June 2022.  The defendant in that proceeding has the same name as the defendant in this proceeding.  Apart from the fact that the defendant in the Supreme Court proceeding has the same (admittedly distinctive) name as the defendant in this proceeding, the plaintiff’s outline of submissions identifies no basis to assume that the two defendants are the same person.   I recognise that there are matters which support that belief in the exhibits to the affidavit, but it is not the Court’s job when hearing a matter on the papers to go though (largely inadmissible) evidence looking for material which supports a submission.
  4. [4]
    The affidavit of the solicitor does not assist on this front.  The solicitor swears to a belief that it is the same person in both proceedings but does not set out the basis for that belief.  This is not an attempt at giving evidence on information and belief as provided for in Rule 430(2).  Rather, the solicitor is swearing to his opinion on the inference to be drawn from other facts which are not identified.  His opinion, in the context of the issue under consideration in this application, is irrelevant.
  5. [5]
    Third, I do not accept the plaintiff’s assertion that service using the contact details for the defendant in the Supreme Court proceedings will bring the proceedings to the attention of Ms Lindeque, even assuming that she is the defendant in that other proceeding.  There is no evidence of any attempt to contact Ms Lindeque using those modes of communication.  There is no evidence that the mobile number is connected, there is no evidence of what kind of premises is located at the address provided, nor evidence that email is functioning.  Nor has any contact been made with the solicitors for the plaintiff in the Supreme Court proceedings to inquire about any of these issues.   Just because contact details in a defence should be efficacious, that does not mean they will be.  
  6. [6]
    The Court’s discretion under Rule 116(2) must be informed by the purpose of substituted service, which is to bring the proceedings to the attention of the other party.[2]  It is important to keep firmly in mind that substituted service is not a way to meet the formal requirements of service without effecting notice of the proceedings.  If a party cannot be found, or if no reliable form of communication of the documents is established, then the proceedings cannot progress, and the application must be dismissed.  
  7. [7]
    I am not persuaded on the current material (admissible or inadmissible) that service as proposed by the plaintiff will bring the proceedings to the attention of the defendant. I dismiss the application and expressly provide that there is no order as to the costs of the application.

Footnotes

[1] Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16; Middencorp Electric Pty Ltd v Intelligent Infrastructure Solutions Pty Ltd [2020] QDC 72; Sunshine Phone Systems (in liq) v Martens and Martens [2021] QDC 36 at [10]; Grow Asset Finance Pty Ltd v Bassi [2022] QDC 23 at [11]

[2] Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272 at 274 per Starke J (HC)

Close

Editorial Notes

  • Published Case Name:

    Wickham FV Pty Ltd ACN 611 049 775 v Susanna Wilhelmina Lindeque

  • Shortened Case Name:

    Wickham FV Pty Ltd ACN 611 049 775 v Susanna Wilhelmina Lindeque

  • MNC:

    [2022] QDC 170

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    29 Jul 2022

Appeal Status

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