Perpetual Corporate Trust Limited v Storr
[2024] QDC 152
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Perpetual Corporate Trust Limited v Storr[2024] QDC 152
- Add to List
Perpetual Corporate Trust Limited v Storr[2024] QDC 152
Perpetual Corporate Trust Limited v Storr[2024] QDC 152
DISTRICT COURT OF QUEENSLAND
CITATION: | Perpetual Corporate Trust Limited v Storr [2024] QDC 152 |
PARTIES: | PERPETUAL Corporate Trust Limited acN 000 341 553 (Plaintiff) V IVAN JOHN STORR (Defendant) |
FILE NO: | 1330/24 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 13 September 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 September 2024 (on the papers) |
JUDGE: | Porter KC DCJ |
ORDERS: |
|
- [1]The plaintiff seeks orders for substituted service of the claim and statement of claim on the defendant pursuant to Rule 116 Uniform Civil Procedure Rules (UCPR). The plaintiff submits that Mr Storr is presently a resident at a specified unit in West End (the unit), that he is deliberately not responding to attempts to raise him by a process server calling on the intercom system of the unit block, and that he is deliberately not responding to calls to his mobile number.
- [2]The plaintiff submits it is in those circumstances that it is impracticable to serve Mr Storr personally, that I ought to find that Mr Storr is avoiding service, and that service by post to the unit address, by email to an email address, and by text to a mobile number will bring the proceedings to Mr Storr’s attention.
- [3]The admissible evidence does not make out, to a sufficient degree of certainty, that Mr Storr is presently a resident at the unit, nor that the mobile number and email address are current and used by Mr Storr. I therefore dismiss the application.
- [4]I should briefly explain the reference to admissible evidence. Many judges of this Court over the last few years have pointed out that evidence tendered in a substituted service application must be admissible and, in particular, that if rule 430(2) UCPR is to be relied upon, the affidavit must meet the requirements of that rule, as articulated in the authorities.[1]
- [5]Key matters relied upon by the plaintiff are not in admissible form:
- The evidence by the process server in paragraph 3 of his affidavit reciting statements made to him by a receptionist on 22 May 2024 are inadmissible because they are hearsay and are not sworn on information and belief. The catchall comment at the end of the affidavit does not, in terms, address this defect; and
- The evidence by the Head of the Locations Department with the corporate investigation agent briefed by the plaintiff in paragraph 5 of his affidavit reciting statements said to have been communicated by Mr Storr is inadmissible, either because it fails to disclose the source or, if the source is Ms O'Shea, the hearsay statements are not sworn on information and belief. The catchall comment at the end of the affidavit does not, in terms, address this defect.
- [6]Further, there is no admissible evidence sufficient to support the conclusion that either the mobile number or the email address are current for Mr Storr. While there is (arguably[2]) admissible evidence in paragraph 6 of the affidavit of paralegal employed by the plaintiff’s solicitors that those details are held by the plaintiff for Mr Storr, that is not, in my view, of itself sufficient evidence that those are contact details which are very likely to bring the proceedings to Mr Storr’s attention, absent some evidence that they remain current, other than the bare assertion of that fact.
- [7]While the process server refers to being directed to voicemail, he does not say what the message says, nor is that any other evidence that the voicemail is Mr Storr’s voicemail.
- [8]The admissible evidence is insufficient to persuade me that the pre-conditions for substituted service in the manner contended for by the plaintiff are met. The application is dismissed.
Footnotes
[1] Most recently, Queensland Building and Construction Commission v Rizzo [2024] QDC 121: see the cases in footnote 1 and the cases to which those cases refer, back to Bendigo & Adelaide Bank Limited v Wilkin & Anor [2018] QDC 16
[2] The affidavit identifies the source as a corporate entity, which cannot have been the direct source and, accordingly, the source is not identified.