Background
Perpetual Trustee Company Limited sued Priya Thanasingh and Luvin Paul Vincent Paul over an alleged 2019 loan of $490,000. The debt was secured over property at 94 Jones Road, Carina Heights, and the plaintiff alleged that the borrowers had defaulted on required principal and interest payments. It sought payment of the debt, accruing interest and possession of the property.
The first defendant was personally served at the property. The second defendant could not be located there, and searches of electoral, ASIC and title records, as well as internet searches, did not identify another address. But the plaintiff had an email address and mobile number supplied by the second defendant, and recent correspondence supported the conclusion that he continued to use both.
The Court’s Holding
Davis J ordered that the application proceed without an oral hearing under r 489 of the Uniform Civil Procedure Rules 1999 (Qld). The relevant facts and discretionary considerations were documented, and there was no reason making a papers determination inappropriate.
The Court held that personal service on the second defendant was impracticable for the purposes of r 116. It accepted that the second defendant had access to the identified Gmail account and mobile number, based on emails concerning the loan that were attributable to him. The Court dispensed with personal service and ordered substituted service by email, ordinary prepaid post to the mortgaged property, and a text-message notification. Service would be deemed five clear days after the last required step was completed. Costs were reserved.
Key Takeaways
- Substituted service is available where personal service is impracticable and the proposed method is likely to bring the documents to the defendant’s attention.
- Evidence showing that a defendant actively uses an email address and phone number can support service by email and text notification.
- The Court may combine electronic and postal methods and specify when service is deemed effective.
Why It Matters
The decision illustrates the practical operation of r 116 in a mortgage-enforcement proceeding where a defendant cannot be found at a known address. It confirms that reliable evidence of current electronic contact can justify substituted service, even where personal service has not been possible.
For lenders and litigants, the case underscores the value of retaining contemporaneous borrower communications when seeking procedural orders to advance a claim.