Resimac Asset Finance Pty Limited v Lette
[2025] QDC 98
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- Resimac Asset Finance Pty Limited v Lette[2025] QDC 98
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Resimac Asset Finance Pty Limited v Lette[2025] QDC 98
Resimac Asset Finance Pty Limited v Lette[2025] QDC 98
DISTRICT COURT OF QUEENSLAND
CITATION: | Resimac Asset Finance Pty Limited v Lette & Anor [2025] QDC 98 |
PARTIES: | RESIMAC ASSET FINANCE PTY LIMITED (plaintif) v DONALD LESLIE LETTE (first defendant) DAMIEN THOMAS SHEERIN (second defendant) |
FILE NO/S: | BD 114/25 |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 22 July 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers – 8 July 2025 |
JUDGE: | Grigg DCJ |
ORDER: | Application dismissed. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – 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 – Whether impracticability of personal service is demonstrated on the evidence |
LEGISLATION: | Uniform Civil Procedure Rules 1999 ss 104, 105, 106, 112(1), (3), 116, 120, 430(2) |
CASES: | A-G v Watego [2003] QSC 367 Attorney General for Western Australia v Lashansky [2014] WASC 42 Embrey v Smart [2014] QCA 75 Foxe v Brown (1984) 58 ALR 542 Kendell v Sweeney [2002] QSC 404 National Australian Bank Limited v Garner [2022] QDC 221 Permanent Custodians Limited v Massey [2009] QSC 4 |
SOLICITORS: | Dentons for the plaintiff No appearance for the defendants |
Introduction
- [1]This is an ex-parte application to dispense with the personal service requirements of rule 105 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
- [2]The plaintiff commenced proceedings by claim on 20 January 2025 against the first and second defendant for money said to be owed to the plaintiff pursuant to an agreement under which the plaintiff advanced credit to Freightshift Pty Ltd (Credit Agreement). In conjunction with the Credit Agreement, the statement of claim alleges the first and second defendants provided a written guarantee and indemnity of Freightshift Pty Ltd’s obligations under the Credit Agreement. The plaintiff alleges Freightshift Pty Ltd has defaulted under the Credit Agreement by failing to make repayments when due and proceeds against the first and second defendant pursuant to the guarantee and indemnity.
- [3]The plaintiff asserts that to date it has not been able to effect personal service of the claim and statement of claim on the first defendant.
Relevant Legislative Requirements
- [4]Chapter 4 of the UCPR contains the rules for service. The starting point, where individuals are concerned, is that a person must be personally served.[1] Rule 105 requires that the originating process, the claim, and the statement of claim, be served personally.
- [5]Rule 106 sets out how personal service or is performed as follows:
106 How personal service is performed
(1) To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served.
(2) However, if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the person’s presence and telling him or her what it is.
(3) It is not necessary to show to the person served the original of the document.
- [6]Personal service may be affected by the placement of the document on the ground in a person’s presence and informing them what the document is.
- [7]
- [8]There are times when people cannot be found, or people resist service for one reason or another. In those circumstances, the UCPR particularise how service can be affected in substitution for the usual methods of service.[5] If it has become impracticable to serve a document, a Court may then make an order substituting a different method of serving the document.
- [9]The Court will be informed that service has been performed through the filing of an affidavit of service by the serving party.[6] This affidavit of service sets out the steps taken by the server to serve the relevant documents to enable the Court to satisfy itself that service has been affected accordingly.
Application
- [10]As the plaintiff has been unable to personally serve the first defendant, on 3 July 2025, the plaintiff applied to the Court for an order for substituted service pursuant to rule 116 of the UCPR. Rule 116 provides:
116 Substituted service
(1) If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.
(2) The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.
(3) The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
(4) The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.
- [11]The Applicant seeks an order from the court declaring that Plaintiff has effected service of the Claim and Statement of Claim on the First Dedendant in accordance with the UCPR, 10 business after the Plaintiff has:
- Sent a copy of the Claim and Statement of Claim and the Order of the Court (the Service Documents) via express post to the Odgen Street Address;
- Sent the Service Documents to the Potential Email Address of the First Defendant; and
- Sent an SMS message to the Mobile Phone Number of the First Defendant advising that the Service Documents have been sent to him via post and email.
Evidence filed in Support of the Application
- [12]On 3 July 2025, an affidavit was filed by a process server, Glen Ronald Jepson, explaining that he had attended a Ogden Street, Townsville address (Ogden Street Address) on five occasions between 31 January 2025 and 25 February 2025. On each occasion, Mr Jepson was unable to serve the first defendant.
- [13]During each visit to the Ogden Street Address Mr Jepson deposed that:
- the property had restricted access;
- he did not sight any vehicles;
- he did not sight any mail; and
- he was unable to speak with occupants of neighbouring properties.
- [14]On each visit to the site Mr Jepson telephoned a mobile number purportedly belonging to the first defendant (Mobile Number). On the first occasion a person answered the telephone call and said he would be available after 4:00 pm. There is no reference in the affidavit of service to Mr Jepson attending the Ogden Street Address after 4:00 pm on that day. On the following four occasions Mr Jepson attended the Ogden Street Address, unsuccessful attempts were also made to call the first defendant using the Mobile Phone Number .
- [15]In addition to Mr Jepson’s affidavit, the plaintiff also relied on an affidavit of William Joseph Torto, a paralegal from the plaintiff’s solicitors.
- [16]Mr Torto deposed that investigations by David Cuddington, an employee of the plaintiff, identified the following “potential” contact information for the first defendant:
- the Ogden Street Address;
- the Mobile Nnumber; and
- an email address (Potential Email Address).
- [17]In addition to the attempts of personal service, the solicitors for the plaintiff also sent a copy of the claim and statement of claim to the first defendant via the Potential Email address. The first defendant responded to the email by return email on 22 March 2025 (22 March Email).
- [18]In the 22 March Email the first defendant:
- informed the plaintiff’s solicitors that his actual email address was different from the Potential Email address they had used;
- denied any wrongdoing in relation to the matters pleaded in the statement of claim annexed to the email; and
- copied another solicitor to the email.
- [19]The plaintiff’s solicitors wrote to the named solicitor requesting confirmation that he had instructions to accept service, but no response has been received. The only conclusion that can be drawn is that the solicitor copied to the 22 March email does not have instructions to accept service.
- [20]Since the 22 March email there has been no further communication between the plaintiff’s solicitors and the first defendant.
Consideration
- [21]The threshold issue to be determined before the discretion to make an order for substituted service is enlivened under rule 116, is whether it is “impracticable” to serve the proceedings on the first defendant.[7] The Court also has to be satisfied the service methods proposed are “likely to bring the proceeding to the knowledge of the defendant or someone representing his interests: Miscamble v Phillips & Anor [1936] [1936] St R Qd 136”: Permanent Custodians Limited v Massey [2009] QSC 4 at [6].[8]
- [22]Impracticability in the context of substituted service has been held to mean an inability to serve after reasonable efforts have been undertaken.[9]
- [23]The difficulty with this application is that there is insufficient evidence before the court of the first defendant’s “relevant address” for service and therefore whether reasonable efforts have been made.
- [24]The affidavit of Mr Torto, deposes that an employee of the plaintiff, David Cuddington, instructed him “that he was able to locate the following potential contact details for the first defendant”. This evidence appears to be hearsay. It also appears to not be in conformity with rule 430(2) of the UCPR which provides:
(2) … an affidavit for use in an application because of default or otherwise for relief, other than final relief, may contain statements based on information and belief if the signatory for the affidavit states the sources of the information and the grounds for the belief
[emphasis added]
- [25]Muir J explained in A-G v Watego [2003] QSC 367:
[26] The requirements of subsection (2) are not met by a broad reference to unspecified documents and classes of documents. The object of the requirement to disclose the deponent’s sources is to provide identification of those sources sufficient to enable the party against whom the evidence is adduced to investigate, assess and, where appropriate, challenge the evidence.
- [26]Although Mr Torto’s belief is admissible in this proceeding by virtue of r 430(2), the evidence provided is insufficient. There is no evidence of what steps and actions were taken by Mr Cuddington, what the records indicated and why they demonstrated a reasonable belief that the Ogden Steet Address was the first defendant’s relevant address for service. What are the grounds for his belief? There has been no title search, or any other material, provided to demonstrate that the claimed address is, on the balance of probabilities, a relevant address of the first defendant. As a result, I am not satisfied that it has been demonstrated the first defendant can be contacted at that address. That is, it has not been demonstrated that personal service of the first defendant is impracticable. I note that no attempts to personally serve the first defendant have been made since the first defendant contacted the plaintiff’s solicitors by email. There is no evidence that the plaintiff has conducted any searches or made any additional inquiries to validate or confirm the potential contact details provided to it by the plaintiff’s employee.
- [27]Even if the proposed alternative methods of service would bring the fact of the proceeding to the first defendant’s attention, this is not sufficient “to justify the making of an order for substituted service. It must first be shown that it is impracticable”.[10]
- [28]In the circumstances, I cannot be satisfied “reasonable efforts” have been made to serve the first defendant.[11]
- [29]Given these circumstances I am not prepared to substitute service by way of email or telephone call, merely because it is more convenient.
- [30]The application should be dismissed with no order as to costs.
Footnotes
[1] UCPR r 104.
[2] UCPR r 112(1)(b).
[3] UCPR r 112(1)(e)(ii).
[4] UCPR r 112(3).
[5] UCPR r 116.
[6] UCPR r 120.
[7] Embrey v Smart [2014] QCA 75 at [15]; National Australian Bank Limited v Garner [2022] QDC 221 at [2].
[8] See also Foxe v Brown (1984) 58 ALR 542; Miscamble v Phillips & Anor [1936] [1936] St R Qd 136; Permanent Custodians Limited v Massey [2009] QSC 4 at [6].
[9] See Foxe v Brown (1984) 58 ALR 542 at 546 and other decisions cited by Edelman J in Attorney-General (WA) v Lashansky [2014] WASC 42, at [8]-[11];
[10] Kendell v Sweeney [2002] QSC 404, at [15].
[11] Foxe v Brown (1984) 58 ALR 542, 547 at [15]; cited in Hadan and Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237, at [5].