Tyres4u Pty Ltd v Thorpe

[2017] QDC 122

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE RYRIE

No 336 of 2017

TYRES4U PTY LIMITED AS TRUSTEE
FOR TWA TRUST  Plaintiff

and

WAYNE MORRIS THORPE
and ANOTHER  Defendant

BRISBANE

11.26 AM, THURSDAY, 6 APRIL 2017

JUDGMENT

DELIVERED EX TEMPORE

HER HONOUR: This is the file, 336/17 on the papers, Tyres4Us – as in, bigger number four, U – Proprietary Limited as trustee for TWA Trust v Wayne Morris Thorpe & Anor. As I have indicated, this is an application without oral hearing, document number 6, seeking, in effect, that personal service on the defendant, namely, two of which are named as defendants, but in particular, defendant Louise Elizabeth Thorpe, T‑h‑o‑r‑p‑e, be dispensed with pursuant to rule 116 of the Uniform Civil Procedure rules in order that a seal claim and statement of claim may be served upon her. The order that is being sought by the applicant is that the documents referred to, that I just mentioned, be served by ordinary, pre-paid post at a certain residential address.

Document number 8 sets out the plaintiff’s material to be read, namely, the applicant in this matter, coupled with the outline. Under the Uniform Civil Procedure Rules, it is a fact that a claim or statement of claim must be personally served upon a defendant. However, the rules also provide under rule 116, that a court may make an order substituting another by serving a District Court if, for any reason, it is impractical to serve a document in the way required under this chapter. In other words, it must be demonstrated that personal service cannot be, in fact, effected. It is impractical to personally serve any such documents and, more importantly, that any documents to be served by substituted service, will likely reach the person or come, at least, to their knowledge if that order is made.

The claim and statement of claim which is being sought is for, amongst other things, moneys due and owing pursuant to a credit agreement and guarantee, and/or recovery or possession of land, known as 159 Denham Street, Allenstown, A‑l‑l‑e‑n‑s‑t‑w‑o‑n.  The attempts at personal service relating to the defendants are set out in the outline of submissions and are not opposed to in the various affidavits to which I have had regard.  That includes various times during the course of February 2017, where an agent who had been engaged by and on behalf of the applicant, to attend at the property to attend to personal service on the defendant and, indeed, the other defendant. 

Those various occasions, set out during the course of February, were that on occasions the plaintiff’s agent was able to make contact with persons who lived at the residence, namely, the daughter, on occasion, who indicated that the particular defendant was in bed sick and would not come to the door, and/or, on another occasion, advising the agent that the defendant would not simply be coming to the door.  On the last occasion, 15^th of February 2017, when the agent attended again, there was – the daughter once again declined to advise if in fact the defendant was even home on that occasion.  On a later date, 23^rd of February 2017, in accordance with the affidavit Mr Goodwin swore on 25^th of February 2017, Mr Thorpe accepted service on his behalf, but he would have told the agent he would not be assisting the agent, because he had already advised how ill his wife was. 

In light of the various attempts made and the contact made with the persons who reside at the relevant address, which one could infer, properly and reasonably, that

the defendant was, in fact, resident to, the cooperation clearly is that neither Mr Thorpe, one of the named defendant, husband of the defendant who is sought to be substituted service now upon his wife, and the daughter, in respect of both defendants were less than cooperative. 

Accordingly, I am satisfied of the following factors.  One, it would be impractical to personally serve the defendant, Louise Elizabeth Thorpe, in the circumstances.  It is, in my mind, shown that is in fact unable to effect personal service because of the protective nature and stance taken by the various other residents in her home, on her behalf, and I am confident that the method of substituted service to be adopted is likely to reach the named defendant and come to her knowledge in the manner that is prescribed.  That method is that the documents be sent by ordinary pre-paid post to the address at which the agent was attending, to which it was clear that the relevant defendant was residing on numerous occasions, as evident by the statements made by not only her husband, Mr Thorpe, but ultimately the daughter as well, who was at the residence.  In those circumstances, I consider it is appropriate to allow the orders of the court, which will be one to four inclusive, which I shall initial, and make those orders.

I initialled two copies of the orders.  I make those orders.  All right.  We will adjourn the court.

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