Commonwealth Bank of Australia Ltd v Mitchell
[2025] QDC 6
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- Commonwealth Bank of Australia Ltd v Mitchell[2025] QDC 6
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Commonwealth Bank of Australia Ltd v Mitchell[2025] QDC 6
Commonwealth Bank of Australia Ltd v Mitchell[2025] QDC 6
DISTRICT COURT OF QUEENSLAND
CITATION: | Commonwealth Bank of Australia Ltd v Mitchell [2025] QDC 6 |
PARTIES: | COMMONWEALTH BANK OF AUSTRALIA (Plaintiff) V ANONA LEE MITCHELL (Defendant) |
FILE NO: | BD NO. 3176 of 2024 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 6 February 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 February 2025 (On the papers) |
JUDGE: | Porter KC DCJ |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – EX PARTE JUDGMENTS AND ORDERS – 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 application heard on the papers – Where impracticability of personal service is demonstrated on the evidence – Whether the method of substituted service sought by the plaintiff is likely to bring the documents to the attention of the defendant |
LEGISLATION: | Evidence Act 1977 (Qld) s 92(1)(b) Uniform Civil Procedure Rules 1999 (Qld) rr 116, 430(2) |
CASES: | Bendigo & Adelaide Bank Limited v Wilkin & Anor [2018] QDC 16 Perpetual Corporate Trust Limited v Storr [2024] QDC 152 Queensland Building and Construction Commission v Rizzo [2024] QDC 121 |
SOLICITORS: | DENTONS AUSTRALIA LIMITED |
- [1]The plaintiff bank sues for possession of a residential property (the Property) subject to a registered mortgage in favour of the bank, following alleged default under that mortgage. The bank seeks orders for substituted service of the claim and statement of claim on the defendant pursuant to Rule 116 Uniform Civil Procedure Rules (UCPR).
- [2]The bank relies on evidence of a solicitor employed by the bank’s solicitors and on the evidence of a process server, Mr Nicholls. The bank submits that that evidence establishes that it is impracticable to personally serve the defendant and that service by delivery of sealed documents to the Property and by email to a specified email address will be sufficiently certain to bring the documents to the defendant’s attention.
- [3]Judges of this Court have repeatedly reminded applicants that evidence tendered in substituted service applications 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] Very little of the evidence in the solicitor’s affidavit is admissible. The confused terms of paragraph 2 foreshadowed that would be the case. It stated:
-
Unless otherwise stated:
- the facts and matters set out in this affidavit are within my own knowledge and professional experience and I believe them to be true;
- where I refer to information supplied by others, the source of the information is identified and based upon my review of the files and documents maintained by Dentons in the ordinary course of its business on behalf of the Plaintiff; and
- the facts and matters derived from other sources are true to the best of my knowledge and belief.
- [4]The solicitor relied on two written reports from process servers.
- [5]The first is from a firm called Allmain. That report is prima facie not admissible, tendered through the solicitor, for the truth of facts asserted in it. It might be made admissible as original evidence under s. 92(1)(b) Evidence Act, then tendered on information and belief though the solicitor, though the conditions for application of that exception to the hearsay rule in s. 92(2) are not addressed by the submissions. If the report is not itself admissible for the truth of its contents, it cannot be admitted under Rule 430(2). However, all that report states of relevance is that the Property appears to be occupied and that two cars were parked outside. That evidence is given admissibly by Mr Nicholls below, so no harm done in any event. But no evidence links either car to the defendant.
- [6]The other report is from Sharmans. It is also prima facie inadmissible, subject again to the possibility that s. 92(1)(b) applies. Again, if the report is not itself admissible for the truth of its contents, it cannot be admitted under Rule 430(2) on information and belief. However, all that report states of relevance is that the Property appeared to be damaged by fire and that the Property was fenced off with a padlocked gate. That evidence is also given by Mr Nicolls, discussed next.
- [7]The other service evidence is from a Mr Nicolls. He deposes in an admissible manner to the matters in the Sharmans report and most of the content of the Allmain report. He then describes eight attempts to serve at the Property between 21 November 2024 and 8 January 2025. On all but one occasion, he could get into the Property because the gate in the fence was padlocked. On the first occasion he saw the cars he had previously seen. On the one occasion he got access because the gate was open, a female rushed into the house as he approached and refused to come to the door when he knocked. He spoke to another occupant and asked to see the defendant and was told she was out and it was not known when she would return. That evidence is admissible for its truth from Mr Nicolls (but of course it is not admissible for its truth on information and belief from the solicitor).
- [8]The only other relevant evidence is the solicitors evidence that he caused a letter to be sent to the defendant at the address of the Property informing the defendant of the proceedings and calling on the defendant to make herself available for service. The letter was also sent by email to a certain address. There has been no response to either communication, nor has the letter been returned.
- [9]The bank’s application turns on whether the Court can be sufficiently confident that the defendant is residing or regularly attending the Property. If the Court cannot be satisfied of that, then the apparent fortification of the Property with the fence and gate and the lack of response to Mr Nicholls visits are irrelevant.
- [10]The evidence that the defendant is residing at or connected to the Property could have been stronger. There is no evidence that either vehicle seen on the Property is connected with the defendant. There is no evidence that the person seen by Mr Nicholls resembled the defendant. There is no evidence from neighbours. There has been no response to any post sent to the Property from the defendant.
- [11]However, on balance I am satisfied that the defendant is residing at the Property:
- She is the registered proprietor of the Property which is a residence;
- The occupant spoken to by Mr Nicholls impliedly admitted the defendant was at the Property; and
- It is difficult to imagine that the fortification of the Property could have been done without at least the knowledge and consent of the defendant as registered proprietor.
- [12]I am satisfied therefore that personal service is impracticable and that service on the Property is highly likely to come to her attention.
- [13]I should add that the evidence of the solicitor as to the last contact details of the defendant was both inadmissible and of little weight. It did not say when the details were provided, or sufficiently identify the source to meet the requirements of Rule 430(2) as authoritatively determined or provide any basis to believe those details remained current. That is of most significance for the email address. There was no evidence that the defendant had ever responded to an email to that address and nothing in the address suggested any link with the defendant. However, it can do no harm to email the documents to that email address if substituted service is to occur.
- [14]Accordingly, I order that personal service be dispensed with and that service occur as sought by the bank. However, given the ambiguity as to the defendant’s connection to the Property, I order that service be deemed to have occurred 21 days after the completion of the substituted service process.
- [15]Finally, preparing substituted service applications and supporting material is a task which must be approached with care and precision. It is also a good discipline for solicitors in civil matters to reacquaint themselves with admissibility rules, particularly under Rule 430(2). It would assist the Court if more attention was given to the preparation of such applications.
Footnotes
[1] Most recently, Perpetual Corporate Trust Limited v Storr [2024] QDC 152 and see Queensland Building and Construction Commission v Rizzo [2024] QDC 121 and 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