LLB306 Client Advice - Sample Format PDF

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MEMORANDUM OF ADVICE TO:

Supervisor

FROM:

Sally Solicitor

DATE:

7 January 2020

RE:

Con Air Pty Ltd (‘Con Air’) v Harry Windsor (‘Harry’)

EXECUTIVE SUMMARY 1. Con Air should apply to renew the Claim and Statement of Claim filed 1 November 2018 (‘Claim’), and for substituted service of the Claim.1 Draft documents are attached. 2. Default judgment may be requested if Harry fails to file a Notice of Intention to Defend (‘NOITD’) and Defence within 28 days after date of service,2 or if Harry files a conditional NOITD but fails to file a Defence within 7 days after it becomes unconditional.3 3. If default judgment is awarded, Con Air should apply for an enforcement warrant for seizure and sale of Harry’s house. Further information required: •

Exact dates and times of attempted service and other actions by Peter Process for insertion into his affidavit as further detail may be more persuasive.4

•

A further service report from Peter Process.

•

Whether the Contract included a default interest rate.5

•

Instructions as to whether the Application can be filed once documents have been finalised.

1 2 3 4 5

Uniform Civil Procedure Rules (Qld) rr 24(2), 116. Ibid rr 281(1), 137. Ibid rr 281(2), 144(6). Ibid rr 116(1), 430. Ibid r 283(4)(a).

Page 1

1.

RENEWAL AND SERVICE OF THE CLAIM Renewal of Claim The Claim became stale after twelve months,6 and an application for renewal should be made.7 An order for substituted service cannot be granted for a stale Claim.8 Renewing the Claim will save costs of a new application. Although the Claim is stale, the court may renew it if satisfied reasonable efforts to serve Harry were made.9 The court will consider whether prejudice will be caused to either party by renewal.10 Harry will not likely be prejudiced by renewal, however Con Air will be unable to obtain an order for substituted service if the Claim is not renewed, and there is a risk the Claim may eventually be nullified. 11 Renewal of the Claim preserves the proceedings.12 The delay was not deliberate and reasonable efforts were made to serve Harry (see attached draft affidavits).13 The Claim will likely be renewed. If the Claim is renewed, it must be sealed by the court and show the renewal period on the Claim before being served.14 Substituted Service of Claim The Claim must be served personally on Harry by giving him the document (or a copy of it).15 Where it is impracticable to effect personal service, it is possible to apply for an order substituting another method of service.16 Service effected in

6

Ibid rr 22(3), 24(1). Ibid rr 24(2), 31. 8 Bernstein v Jackson [1982] 2 All ER 806. 9 Uniform Civil Procedure Rules (Qld) rr 24(2)-(3). 10 Muirhead v Uniting Church in Australia Property Trust [1999] QCA 513 [4]; Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337. 11 Uniform Civil Procedure Rules (Qld) rr 24(1), 371; Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; Gillies v Dibbetts [2001] 1 Qd R 596. 12 The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 [53]. 13 Uniform Civil Procedure Rules (Qld) r 24(2). 14 Ibid r 24(5). 15 Ibid rr 105, 106(1). 16 Ibid r 116(1). 7

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compliance with an order for substituted service is as effective as personal service.17 An order for substituted service can only be made if the court has jurisdiction.18 The Claim is under $750,000,19 and Harry is located in Queensland.20 Jurisdiction is uncontentious. An order is possible if Harry leaves Queensland.21 Before granting an order for substituted service, the court must be satisfied:22 (i)

there is a practical impossibility of actual service; and

(ii)

the proposed method of substituted service is likely to bring knowledge of the proceeding to Harry.

Personal Service is Impracticable To determine whether personal service is impracticable, the court must examine the difficulties in effecting service.23 It must be shown that despite reasonable effort, personal service on Harry was unable to be effected.24 Affidavits have been drafted to evidence attempts to serve Harry.25 Both the solicitor with conduct of the matter and the process server must swear affidavits, as evidence provided directly to Peter Process will be more persuasive if provided by him.26 Attempts to personally serve Harry have been unsuccessful. He is currently in remote north Queensland with no fixed address. The duration of Harry’s stay in the region is unknown and is dependent upon his research’s success. Accordingly, personal service is impracticable.27 17 Grice

v Grice [1930] St R Qd 261. v Carroll (1958) 98 CLR 310, 322- 4. 19 District Court of Queensland Act 1967 (Qld) ss 68(1)-(2). 20 Laurie v Carroll (1958) 98 CLR 310, 322- 4. 21 Ibid. 22 Porter v Freudenberg [1915] 1 KB 857, 888-9. 23 Uniform Civil Procedure Rules (Qld) r 116(1); Paragon Group Ltd v Burnell [1991] 2 All ER 388; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480, 482. 24 Foxe v Brown (1984) 58 ALR 542, 546-7; Embrey v Smart [2014] QCA 75 [27]. 25 Uniform Civil Procedure Rules (Qld) r 390; Embrey v Smart [2014] QCA 75 [27]; Ricegrowers Cooperative Ltd v ABC Containerline NV (1996) 138 ALR 480, 482. 26 Uniform Civil Procedure Rules (Qld) rr 430(1)-(2); Bendigo & Adelaide Bank Limited v Wilkin & Anor [2018] QDC 16 [19]. 27 Uniform Civil Procedure Rules (Qld) r 116(1); Suncorp Metway Ltd v Agnew [2015] QSC 195. 18 Laurie

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Knowledge of the Proceeding The court must be satisfied Harry will likely be made aware of the Claim so he can protect his rights.28 There should be more than one method of substituted service to increase the likelihood bringing the Claim to Harry’s attention.29 Proposed methods of substituted service of the Claim and sealed Order (‘Documents’) are:30 (i)

Service on Harry’s brother, Charles Windsor (‘Charles’), as he has weekly contact with Harry. Documents served on a family member will likely bring them to Harry’s attention.31

(ii)

Service on Harry’s employer at its registered office.32 The employer is aware of Harry’s location.

(iii)

Emailing the Documents to Harry as emails have been sent to Harry previously and he changed his out of office reply demonstrating his use of that email address.33

(iv)

Sending a SMS message to Harry’s mobile advising the documents were delivered to his brother, employer and his email.34

We suggest service be deemed 14 days from completion of the above to allow sufficient time for Harry to be notified.35 Whilst it is possible to request the 28

Uniform Civil Procedure Rules (Qld) r 116(2); Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272, 274; Commonwealth Bank of Australia v Diplock [2010] QSC 146; Queensland Construction and Engineering Pty Ltd v Wagner [2011] QDC 171. 29 Uniform Civil Procedure Rules (Qld) r 116(2); Permanent Custodians Limited v Massey [2009] QSC 4 [14]. 30 Uniform Civil Procedure Rules (Qld) r 24(5); H v C [2011] QDC 73. 31 Australia and New Zealand Banking Group Limited v Woodman [2010] QDC 440. 32 Uniform Civil Procedure Rules (Qld) r 107; Corporations Act 2001 (Cth) s 109X; Ask Funding Ltd v Moshit Rose [2011] QDC 145, 1-3. 33 Capital Finance Australia Limited v Harding [2010] QDC 521. 34 Muir v Hunter [2011] QDC 290, 1-4; Australian and New Zealand Bank Group Limited v Smalley & Anor [2012] QDC 80; Prout v La Rosa [2007] WASC 63. 35 Uniform Civil Procedure Rules (Qld) r 116(3).

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application be decided without oral hearing (with written submissions), we recommend a hearing so oral submissions may be made.36 Once sealed orders have issued, they should be served on Harry together with the Claim.37 Costs The court may order costs in Con Air’s favour if it can show Harry deliberately evaded service.38 That may be difficult to prove at present. We recommend requesting costs of the application be reserved.39 Other Service Methods The Contract did not include any terms specifying service of proceedings.40 If the Documents come into Harry’s possession, but not served as required, the court may order informal service was effected the day Harry received the Documents.41 An application for substituted service is more reliable.

2.

REQUIRED COURT DOCUMENTS To facilitate expeditious resolution of issues, the two applications have been combined.42 The following draft forms are attached: (a) Form 9 Application for renewal of Claim and substituted service.43 (b) Form 46 Affidavit of Sally Solicitor with Form 47 Certificate of Exhibits.44 (c) Form 46 Affidavit of Peter Process.45 (d) Form 59 Draft Order.46

36 Ibid

rr 32, 489, 490(1)(b), 491; Heritage Bank Limited v Gleeson [2019] QDC 119 [38]. Civil Procedure Rules (Qld) r 24(5); H v C [2011] QDC 73. 38 Uniform Civil Procedure Rules (Qld) r 693; Bellino v Douglas [2013] QDC 333. 39 Ministry of Foreign Affairs of the Republic of Italy v Simeone [2016] QDC 160. 40 Uniform Civil Procedure Rules (Qld) r 119. 41 Ibid r 117; Symes v Saunders [2011] QDC 217. 42 Uniform Civil Procedure Rules (Qld) r 5. 43 Ibid rr 5, 24(2), 31, 116. 44 Ibid rr 390, 431, 432, 435. 45 Ibid. 46 Ibid r 661. 37 Uniform

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3.

DEFAULT JUDGMENT Default judgment may be requested if Harry fails to file a NOITD and Defence within 28 days after date of service,47 or if Harry files a conditional NOITD but fails to file a Defence within 7 days after it becomes unconditional.48 The day of service must be excluded.49 Non-compliance with these timeframes could result in default judgment being set aside.50 Con Air must file:

(i)

Form 25 Request for Default Judgment. This is a liquidated debt as the $230,000 owing is payable under a contract and is a rule 283 claim.51

(ii)

Form 46 Affidavits of Service. Affidavits prove the Claim’s date of service.52 If the proposed Order is granted, service is deemed 14 days after all steps in order 3 are completed. Rules regarding timing of service must also be considered.53 Affidavits of personal service must be made by the person who served the Claim and provide full details of service.54 Affidavit of service for email and SMS must detail relevant dates and facts of service.55 The Affidavits must exhibit the Claim or sufficiently identify it.56

47 Ibid

rr 281(1), 137. rr 281(2), 144(6). 49 Ibid r 137; Botha v Carter [2005] QDC 49, 6. 50 Pioneer Concrete (North Coast) Pty Ltd v Bennett [1972] Qd R 544, 554. 51 Uniform Civil Procedure Rules (Qld) r 283; Spain v Union Steamship Company of New Zealand (1923) 32 CLR 138. 52 Uniform Civil Procedure Rules (Qld) r 282. 53 Ibid rr 101, 103; Acts Interpretation Act 1954 (Qld) s 38. 54 Uniform Civil Procedure Rules (Qld) r 120(1)(a). 55 Ibid r 120(1)(b). 56 Ibid rr 120(2), 435. 48 Ibid

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(iii)

Form 46 Affidavit of Debt. Bobby Boss (Con Air’s Chief Executive Officer) must depose that the debt remains outstanding. The affidavit should detail interest and costs claimed.57 Costs of the previous applications were reserved and can now be requested. If the Contract included a default interest rate, that rate will be applied.58 If not, then interest claimed should not be higher than 4.75%.59 Interest is payable from 23 August 2018 to date of judgment.60

(iv)

Form 26 Judgment (in triplicate).

Requests are usually decided without oral hearing.61 The request may be filed by post,62 but the Affidavit of Debt is only valid for 5 business days after swearing.63 Default judgement should be granted. If the above timeframes are adhered to, it will only be set aside if there is a defence available on the merits.64 That is unlikely as this is a contract debt and installation was performed satisfactorily.

4.

ENFORCEMENT OF JUDGMENT The default judgment order must be filed to be enforced,65 and is valid for 12 years from filing date.66 Enforcement costs and interest can be added to

57 Ibid

rr 283(2), 283(4)-(8); Civil Proceedings Act 2011 (Qld) s 58. Civil Procedure Rules (Qld) r 283(4)(a). 59 Ibid rr 283(4)(b), 283(7); Civil Proceedings Act 2011 (Qld) s 58; District Court of Queensland, Practice Direction No 6 of 2013: Interest Rates , 19 April 2013; Reserve Bank of Australia, Cash Rate (Web Page) . 60 Civil Proceedings Act 2011 (Qld) s 58. 61 Uniform Civil Procedure Rules (Qld) rr 283(10). 62 Ibid rr 967, 969. 63 Ibid r 970. 64 Heritage Bank Limited v Gleeson [2019] QDC 119 [17]. 65 Uniform Civil Procedure Rules (Qld) r 661(4). 66 Limitation of Actions Act 1974 (Qld) s 10(4). 58 Uniform

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judgment debt.67 As we are aware of Harry’s assets, an enforcement hearing is unnecessary.68 It is unnecessary to send Harry a letter of demand.69 Con Air may obtain an enforcement warrant by filing:70 (i)

Form 9 Application.71

(ii)

Form 75 Enforcement Warrant.72

(iii)

Form 74 Statement - must be sworn no earlier than two business days before the application date.73 The statement must include information required to calculate the amount due and necessary for the warrant to issue.74

Applications are usually processed by the Registrar without a hearing and service is not required, but the warrant must be filed.75 The warrant is valid for one year but may be renewed.76 The enforcement warrant may order an enforcement officer (‘Officer’) to seize and sell all real and personal property (excluding exempt property) in which Harry has a legal interest.77 Searches have revealed Harry owns both the property at 11 Balmoral Crescent, Brookfield (‘Property’) valued at $360,000, and the car valued at $90,000, with no security interests registered. These are not exempt property.78

67

Uniform Civil Procedure Rules (Qld) rr 797, 798; Civil Proceedings Act 2011 (Qld) ss 59, 85; District Court of Queensland, Practice Direction No 6 of 2013: Interest Rates, 19 April 2013; Reserve Bank of Australia, Cash Rate (Web Page) . 68 Uniform Civil Procedure Rules (Qld) rr 808, 817. 69 Civil Proceedings Act 2011 (Qld) s 84. 70 Ibid s 90(1); Uniform Civil Procedure Rules (Qld) rr 793 (definition of ‘enforcement warrant’), 794, 817. 71 Uniform Civil Procedure Rules (Qld) r 31. 72 Ibid rr 820(1)-(2). 73 Ibid r 817(1). 74 Ibid. 75 Ibid rr 817(5), 817(2)-(3). 76 Ibid rr 820, 821. 77 Ibid r 828(1); Civil Proceedings Act 2011 (Qld) ss 90(2)(a), 4, Sch 1; Bankruptcy Act 1966 (Cth) s 116(2); Bankruptcy Regulations 1996 (Cth) regs 6.03A, 6.03B. 78 Civil Proceedings Act 2011 (Qld) s 4, Sch 1; Bankruptcy Act 1966 (Cth) s 116(2); Bankruptcy Regulations 1996 (Cth) regs 6.03A, 6.03B.

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To protect Con Air’s interests and as a precondition for seizure and sale of the Property, the Officer must register the enforcement warrant against the title in the Titles Registry.79 This will freeze the title of the Property for six months.80 All property is sold by advertised public auction.81 The valuations obtained for the Property and vehicle should be provided to aid determination of a reserve price.82 The order of sale of assets will be determined by considering what is best for prompt enforcement without undue expense and what will minimise hardship.83 The Property may be seized and sold even though its value exceeds the amount recoverable, in which case the car must not be seized and sold. 84 If sale of the Property is unsuccessful, the Officer may apply for an order to sell at the best price obtainable.85 Charles is not a tenant so there are no tenancy issues. If Harry pays the debt before sale, the enforcement process ceases.86 The Officer must pay all sale proceeds to the Registrar for distribution.87 We recommend enforcement proceedings be commenced immediately after default judgment is obtained.

Word count:

Court form procedural words not counted:

550 *

Words counted:

2995

Total words:

3545

(Word count totals at bottom of each court document are included in the above figures) * in accordance with email from Elizabeth O’Connor on 3rd January 2020 and feedback provided by Elizabeth O’Connor on Discussion Board.

79 Land

Title Act 1994 (Qld) s 116. s 117. 81 Uniform Civil Procedure Rules (Qld) rr 832, 834. 82 Ibid r 837. 83 Ibid r 829(1). 84 Ibid r 829(3). 85 Ibid r 833. 86 Ibid r 830; Civil Proceedings Act 2011 (Qld) s 92. 87 Uniform Civil Procedure Rules (Qld) r 836. 80 Ibid

Page 9

DISTRICT COURT OF QUEENSLAND REGISTRY: NUMBER: Plaintiff:

Brisbane D678/2018

Con Air Pty Ltd A.C.N. 123 456 789 AND

Defendant:

Harry Windsor APPLICATION

TAKE NOTICE that the Plaintiff is applying to the Court for the following orders: 1. Pursuant to rule 24(2) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’), the Claim and Statement of Claim filed on 1 November 2018 (‘Claim’) be renewed for one year.

2. Pursuant to rule 105 of the UCPR, personal service of the Claim on the Defendant be dispensed with. 3. Pursuant to rule 116 of the UCPR, substituted service of the Claim and a sealed copy of this order (‘Documents’) be effected on the Defendant by: (a) serving the Documents on Charles Windsor, at 11 Balmoral Crescent, Brookfield, Queensland. (b) serving the Documents on Glencore Pty Ltd at its registered office at 141 Prince Street, Brisbane, Queensland. (c) emailing

a

copy

of

the

Documents

to

the

Defendant

at

[email protected]; APPLICATION Filed on Behalf of the Plaintiff Form 9, Version 1 Uniform Civil Procedure Rules 1999 Rules 31, 24(2), 105, 116

Name: KWN Solicitors Address: 1 George Street Brisbane Qld 4000 Phone No: (07) 3000 4321 Fax No: (07) 3000 4322 Email: [email protected]

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(d) sending the following SMS message to the Defendant’s mobile telephone number 0444 123 456: ‘Dear Mr Windsor, we act for Con Air Pty Ltd. In accordance with court orders, we have served Claim No. D678/2018 on Charles Windsor, Glencore Pty Ltd, and have sent a copy of the documents to your email address [email protected]. To dispute the claim, you must file a Notice of Intention to Defend with the court within 28 days of service, otherwise judgment may be entered against you without further notice.’ 4. Service of the Documents is deemed effected 14 days after the Plaintiff has completed all steps in order 3 above.

5. Costs of this Application are reserved. This application will be heard by the Court at QEII Courts of Law Complex, 415 George Street, Brisbane on:

[date]

Filed in the Brisbane Registry on:

2020 at 10 am.

[date]

Registrar: (registrar to sign and seal) If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. On the hearing of the application the applicant intends to rely on the following affidavits:

1. Affidavit of Sally Solicitor Johnson sworn [date]; 2. Affidavit of Peter Process sworn [date].

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THE PLAINTIFF ESTIMATES THE HEARING SHOULD BE ALLOCATED 30 Minutes

Signed: Description:

Solicitor for the Plaintiff

Dated: This application is to be served on: This Application is made ex parte. The Plaintiff does not intend serving this Appli...