How does “service” of a Statement of Claim work?

Body Corporate Law, Commercial Law, Credit Management, Litigation Process

After a Claim and Statement of Claim have been lodged with the Court and returned to us, the next step is to “serve” the documents on the Defendant in accordance with the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Rule 105 of the UCPR states:

(1)   A person serving an originating process must serve it personally on the person intended to be served.

Service on an Individual:

Personal Service is performed by giving the document to the person mentioned in the document. If the person refuses to accept service, the Rules permit the service agent serving the document to place the document down in the person’s presence and then explain  what has been placed by the person.

Occasionally, we may be required to conduct a skip trace to find a Defendant.  A skip trace requires the engagement of an investigator to search a wide range of public and private records to find the historical movements of the Defendant.  Whilst a skip trace may not find the Defendant, it may bring to light contacts which we can use then to find the Defendant.

If personal service cannot be achieved as a result of demonstrated evasion by the Defendant or it can be demonstrated service can be undertaken by alternative means to personal service (although traditional service attempts have been exhausted), an Application for Substitute Service is the next option. Before such an Application can be considered, we must provide evidence as to all attempts undertaken to date relative to locating and serving the Defendant, as well as evidence to demonstrate that a proposed Alternative is likely to provide notice to the Defendant of the proceedings.

Service on a Company:

If the Defendant in the matter is a company, service is be undertaken by sending the documents by post to the Defendant’s registered office.

After Service:

Pursuant to the UCPR, the Defendant has 28 days from the date of service to file a Defence or reach an agreement with the Plaintiff (such as paying a debt in full or by entering into a payment plan, or engaging in conduct that is required by the Plaintiff of the Defendant in the Claim and Statement of Claim).

If no action is taken by the Defendant following such period, there are a number of options available, but the most logical in cases in which the debt is “liquidated” (i.e. for a fixed amount) is to seek a Default Judgment against the Defendant.  Following entry of a Default Judgment against the Defendant, the Plaintiff is then empowered to “enforce” the Default Judgment.

Effectively, service is the second “starting gate” to the process of chasing a matter.  Service can take a considerable period in many cases in which the Defendant is an individual, and is quite frankly, the most frustrating part for many of our clients.

We welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

468