The adequacy of time honoured legal lexicon used to express the means by which a document is sent to a recipient’s address by post has come under challenge in the Court of Appeal.

Among the evidence relied upon by Bank of Queensland to obtain default judgement for recovery of possession a Wavell Heights home in September 2012, was an affidavit of service of the proceedings by post pursuant to an order for substituted service.

Borrower Michel Mustanq – who claimed never to have received the initiating proceedings – produced evidence from Australia Post that it had, in the same week as the BOQ correspondence was sent, returned a registered post item intended for her to its sender.

She contended that this must have been the solicitors’ letter and that the envelope had most likely been incorrectly addressed or had insufficient postage affixed.

The solicitor’s affidavit of service omitted, she claimed, essential details about the mechanics of the sending process – ie what address had been applied to the envelope, how the solicitor “caused” the item to be posted and the amount of postage that had been applied.

Self-represented on her stay of execution application pending the appeal of a bid to set aside the bank’s default judgment – which had been dismissed by the applications judge on the basis that she had no defence to BOQ claim – Mustanq relied upon a 2009 QSC ruling that deemed inadequate, by reason of the same deficiencies she herself claimed, an almost identical affidavit of postal service of a Corporations Act statutory demand .

Distinguishing that case, the court noted: “That case concerned a statutory demand, the consequences of failure to comply with which are very serious including deemed insolvency”.

Fraser JA went on to say “my provisional view is that an affidavit by a solicitor that she caused the item to be sent by registered post is sufficient proof that it was sent by registered post” and that “the correct postage was affixed”.

Finding that the correct face-of-envelope address had been adequately proved because it had been identified in both the body of the affidavit and in the enclosing letter exhibited, his honour concluded that “whilst I am not prepared to express any final opinion, it seems to me that the prospects of success in the appeal on [the postage] point are poor”.

Against that finding and without proof of “such significant prejudice as justifies depriving the bank of the fruits of the litigation in which it has succeeded to date”, the stay application was refused.

One could be forgiven a wry smile from his honour’s final comments: “In view of the evidence of the applicant’s poor health and the considerable pressure on her and her inability to find alternative accommodation to date, I am prepared to grant a further short stay [of seven days] notwithstanding I refuse the application for a stay pending appeal”.

The “caused to be forwarded” question will be re-visited when the leave issue for the out-of-time appeal is argued, assuming Mustanq has the stomach to maintain the stoush after having had her home sold up from under her.

Mustanq v Bank of Queensland Ltd [2013] QCA 207 Fraser JA 30/07/2013


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