QLD Does Trespass Invalidate Notice Served?

[Rod]

His statement you quoted by itself does not prove agency.

Agree that's part of 'Agency', next step though is to somehow prove the agent was to create or affect legal relations between you and the principal. I'm unclear if that exists here.

 

[gordonc]

His solicitor says in a letter,
"On 29 August 2015 the Trustee served at the Property a Form 15 Abandonment Termination Notice...."

Thanks, I will work on this one.

 

[Iamthelaw]

I'm not really following this well at all.

From what I can gather you're wondering whether service is effective? ie, You've been served properly? I'm not seeing at all how this becomes an issue of agency...

I assume that you were personally served?

From what I can gather, yes service has been effected - Notwithstanding the fact that you're aware that you've been served. The use of deceptive methods by the process servers to serve another party is irrelevant. Ainsworth v Redd (1990)

 

[Rod]

OP wanted serving question answered, which you and Tim answered. But he is now attempting to work out if he has an action in trespass against the person who hired the process servers. I don't think he has a cause of action in trespass but he is still trying ....

 

[gordonc]

I'm not really following this well at all.

From what I can gather you're wondering whether service is effective? ie, You've been served properly? I'm not seeing at all how this becomes an issue of agency...

I assume that you were personally served?

From what I can gather, yes service has been effected - Notwithstanding the fact that you're aware that you've been served. The use of deceptive methods by the process servers to serve another party is irrelevant. Ainsworth v Redd (1990)

The statement of claim now has the following paragraphs:

67. An agent acting within the scope of authority of the Second Defendant, by intentional illegal trespass and unconscionable conduct, placed the Notice inside the Property’s fence and locked gates where it was unlikely to be found, and was not found.

68. The Notice was chosen to be served by trespass and unconscionable conduct :
(a) when trespass was expressly forbidden by way of the NNTTs; and
(b) when postal service would have been effective, less intimidating and in compliance with the rules of entry under the Act; and
(c) constituted breaches of the legislation per sub-paragraph 80(b) below; and
(d) so that the tenants would not find the Notice by reason of its placement per paragraph 67; and
(e) thereby causing substantial distress and humiliation to the Beneficiary & Second Defendant on finding out the matters at paragraphs 71 to 76 below; and
(f) the Beneficiary and Second Plaintiff being sub-tenants of the Company, being affected by the Notice but receiving no notice of the Notice.

68.1 By reason of paragraph 67 and 68 the service of the Notice was invalid, thus rendering the Notice ineffective.

77 . As the agent/s were acting within the scope of the Second Defendant’s authority, the Second Defendant is liable for all the illegal trespasses, the unconscionable conduct and the trickery surrounding the matters pleaded at paragraph 67.

I don't think Ainsworth v Redd is relevant in circumstance where the service was by intentional unconscionable trickery via trespass and in breach of relevant legislations:
(i) section 202 of the Act - Unlawful entry of premises; and
(ii) section 36 of the Debt Collectors (Field Agents and Collection Agents) Act 2014 - Unlawful entry; and
(iii) section 48A of the Invasion of Privacy Act 1971 - Unlawful entry of dwelling houses;

I cannot put a link into the statement of claim as someone keeps removing it.

 

[Rod]

See Uniform Civil Procedure Rules 1999 (QLD) - Sect 117

Your statement of claim admits receipt of notice, bringing s117 into play. Think you are fighting a losing battle.

 

[gordonc]

I think you are missing the point Rod. Sure we eventually received it after it was past the 7-day period to respond to QCAT, which was the intention of the Second Respondent. The bottom line here is that you cannot use the law to get away with fraud.

 

[gordonc]

More paragraphs:

70. The Notice had a 7 day requirement to dispute the Notice, by applying to QCAT under section 356 of the Act, otherwise the Property was deemed to be abandoned.


71. The Notice was not responded to, as it had not been found, despite the Beneficiary and the Second Plaintiff being in lawful possession of the Property at all times material up to 8 September 2015 and being in attendance at the Property multiple times during the purported period of abandonment.


72. The Beneficiary and Second Plaintiff first became aware of the Notice by way of an emailed letter at 4.48pm on 8 September 2015 from the Second Defendant’s solicitor which stated;

“In the premises, as of 8 September 2015 our client was entitled to enter and take possession of the Property and has done so.”



73. On immediately attending the Property, the Second Plaintiff found the Second Defendant’s agent in possession of the Property who stated to the Second Plaintiff; “you found the Form 9, but you didn’t find the Form 15 you dick head”.


74. Having been called a dick head for not finding the Notice, the Second Plaintiff concluded that the whole exercise regarding the Notice was an unconscionable trick.

 

[Rod]

I think you are missing the point Rod, sure we eventually received it after it was past the 7 day period to respond to QCAT,

Yes I did. There was no earlier mention of notice being received past a due date.

Make that your main point, not the trespass. How it was served is secondary to not being found until after the due date.

Keep to the main point that that service was not received before the due date.

Notice was not received until x date, past the due date of 8 Sept 2016 because of ...

Unless you are counter claiming for trespass, trespass itself is not particularly relevant. What is relevant is where the documents were placed and why you didn't see them.

 

[gordonc]

Thanks Rod, paragraph 73 now says,

73. On immediately attending the Property on 8 September 2015, the Second Plaintiff :

(a) found the Second Defendant’s agent in possession of the Property who stated to the Second Plaintiff; “you found the Form 9, but you didn’t find the Form 15 you dick head”; and
(b) whereupon the agent pointed out the envelope containing the Form 15 Notice; and
(c) consequently the Notice became served on the Second Plaintiff; and
(d) as the issue date on the Notice was 29 August 2015, 9 days had passed causing the required statutory 7 day response time to dispute the Notice to QCAT, to have passed.