DISTRICT COURT OF QUEENSLAND

CITATION: Pilling v Shajahan Karim LLB & Ors [2020] QDC 306
PARTIES: GAIL DIANE PILLING
(applicant)
v
SHAJAHAN KARIM LLB
(first respondent)
and
SOVEREIGN MICHIGAN LLC
(second respondent)
and
DETROIT INVESTMENT CORP
(third respondent)

FILE NO: D136/19

DIVISION: Civil
PROCEEDING: Application
ORIGINATING District Court at Maroochydore
COURT:
DELIVERED ON: 3 December 2020
DELIVERED AT: Maroochydore
HEARING DATE: 21 August 2020
JUDGE: Long SC DCJ

ORDER: The application be dismissed.

CATCHWORDS: APPLICATION FOR DEFAULT JUDGMENT – Where the

applicant sought to effect service outside Australia without
leave of the court pursuant to UCPR 129F – Where the
applicant expressly sought to avoid engagement of the
Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil and Commercial Matters
1965 (known as the Hague Convention) – Where the applicant
adapted a Notice of Service for inter-state service in Australia
to provide Notice of Service outside Australia – Where the
Notice of Service contained discrepancies with legislative
requirements for service outside Australia – Whether informal
service was effected – Whether any of the circumstances in
UCPR 129F were engaged to permit service without leave of
the court – Where there is difficulty in identifying the
 2

appropriate rule under which default judgment might be

entered on any particular claim

LEGISLATION: Corporations Act 2001 (Cth), s 109X

Service and Execution of Process Act 1992 (Cth)
Uniform Procedure Rules 1999 (Qld), rr 3, 31, 105–107, 112,
117, 125, 125F, 128, 129, 129B–129G, 130, 130A, 130B,
130J–130L, 137, 281–287, 289

CASES: Borsch v Answer Products Inc [2000] QSC 379

Express Airways v Port Augusta Air Services [1980] Qd R 543
Laurie v Carroll (1958) 98 CLR 310
Spain v Union Steamship Co of New Zealand Ltd (1923) 32
CLR 138
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

SOLICITORS: Chris Reeve & Co Solicitors for the applicant

No appearance for the first, second or third respondents
 3

Introduction

[1] By way of Application filed in this Court on 12 August 2020, the plaintiff ultimately
seeks default judgment in respect of her Claim, which was filed together with a
Statement of Claim on 29 August 2019. Such judgment is sought in default of the
filing of any notice of intention to defend, by each of the first, second and third
defendants. The Application for default judgment and costs of that and an earlier
Application for the entry of default judgment by the Registrar, was first returned for
hearing in this Court on 21 August 2020, where, upon there being no appearance for
any defendant, it was reserved, subject to the applicant filing a written outline of
submissions and any additional material to be relied upon. Additional written
submissions were filed in this Court on 27 August 2020.

[2] There are five claims included by the plaintiff in her Claim and Statement of Claim,
but not all are made against each of the defendants. In her Statement of Claim, the
plaintiff is described as a divorced pensioner residing at Noosaville and it is alleged
that the first defendant, “was and is [and represented himself as] a solicitor of the
High Court of the United Kingdom” and the director and sole shareholder of the
second and third defendant companies.

[3] Attempting to succinctly summarise the plaintiff’s discursively and narratively

pleaded claims, is not without difficulty. However the following is an attempt to
capture what appears to be the gravamen of them:

(a) Recovery of US$50,000 (AUD$73,777.50): 1

“invested or contributed by the Plaintiff to the Second Defendant

at the rest of and pursuant to representations made to the Plaintiff
by the First Defendant pursuant to a Joint Endeavour Agreement
(the Agreement”), entered into between the Plaintiff as ‘Investor
Partner’, and the Second Defendant as ‘Developer’ and executed
on behalf of the Second Defendant by the First Defendant, and
entered into by the parties at Noosaville Queensland in this
District.” 2
And also, loss of “investment return” of 20% per annum, calculated to 30
September 2019, as US$124,416.00 (AUD$198,832.00). 3

1
AUD calculations are expressed to be “on the published exchange rate as at the date of drawing this
claim”.
2
Claim, filed 29/08/19, at [1a)].
3
Claim, filed 29/09/19, at [1b].
 4

(b) Recovery of US$53,000 (AUD$78, 204.15):

“against the First Defendant by way of unjust enrichment

received by the First Defendant as a result of the First Defendant
taking advantage of his position as a Claimant’s Solicitor and
Agent and Attorney in purchasing the Claimant’s property [in
Michigan USA and described as “Westchester” and on-selling it]
without notice or knowledge of the Plaintiff, on 19TH day of July
2019, receiving, keeping and retaining the difference of
US$53,000 for the First Defendant’s own use and benefit in
breach of [his] duties of upmost(sic) good faith to the Plaintiff, to
act solely in the interest of the Plaintiff.” 4
And also, interest calculated from 19 July 2017 to the date of the Claim, at
AUD$87,246.92, together with the following express claim:

“…. that the said Contract for the sale of Westchester by the
Plaintiff to the First Defendant was entered into having been
executed by the Plaintiff in this District after execution of the
same by the First Defendant.” 5
(c) Recovery of US$45,105 (AUD$66,664.68) for:

“…. monies deducted from or taken from the Plaintiff’s monies

by the First Defendant as Solicitor and/or Agent and/or Attorney
for the plaintiff and paid to the Second Defendant for alleged
repairs or improvements or other expenses allegedly relating to
the Plaintiff’s [properties, in Michigan USA and respectively
referred to as “Decatur” and “Westchester”], from the 19th day of
March 2014 to the 9th March 2018, without the Plaintiff’s prior
knowledge or approval, and for which no proper accounting for
or evidence of the actual payees of those monies has been given
by the Defendants to the Plaintiff.” 6
And also, interest in the calculated sum of US$45,105.00 (AUD$82,169.74). 7

(d) Damages:

“arising from the loss of Contract of Sale (the Decatur Contract)

…. which was frustrated by the actions of the First and Second
Defendants [by placing a tenant in the property after termination
of their] Management Agreement and execution of the Decatur
Contract, including such rent as was or should have been payable
by the tenant [calculated at US$6000.00] plus repairs of damage
to the property caused by the tenant (US$2,420.00) plus interest
on US$27,900.00 from 30th May 2019 to the date hereof of

4
Claim, filed 29/08/19, at [1c].
5
Claim, filed 29/08/19, at [1d].
6
Claim, filed 29/08/19, at [1f].
7
Claim, filed 29/08/19, at [1g–i].
 5

(US$36,320.00)(A$41,196.81) at the court rate totalling

A$54,330.91 at the current exchange rates”. 8
(e) Exemplary or punitive damages in the sum of AUD$100,000.00 against the
first defendant for his breach of fiduciary duties owed to the plaintiff “whilst
[he] was acting as her Solicitor and/or Agent in relation to her financial
circumstances and dealings”. 9

[4] Further and far from positively contributing to any sense of further clarification or
simplification of the bases of the plaintiff’s claims, the fifth claim is followed by a
claim for interest and a summary of her claims, as follows:
“l) The plaintiff also claims interest on the total amount of the
Plaintiff’s Claim 1 at 20% per annum and on Claims 2-5 of
A$323,747.57 from the date hereof 27th August 2019 pursuant
to Section 58 of the Civil Proceedings Act 2011 to the date of
payment or Judgment.

And the Plaintiff Claims:-

Claim 1 A$ $198,832.00
Plus further @20% p/a to payment or Judgment
Claim 2 A$ $87,246.92
Claim 3 A$ $82,169.74
Claim 4 A$ $54,330.91
Claim 5 A$ $100,000.00

Total amount of the Plaintiff’s Claim & interest to the date hereof A$

Plus further interest pursuant to the Agreement @20% per annum on

Claim 1 and on Claims 2-5 pursuant Section 58 of the Civil Proceedings
Act 2011 at the applicable rates from the date hereof to the date of
payment of Judgment.” 10

[5] The plaintiff’s Claim and Statement of Claim were filed in this Court on 29 August
2019. The plaintiff sought to effect service outside of Australia at addresses in the
United Kingdom and the United States. As the applicant’s Claim relates to actions in
personam, the common law rule is that service of the originating process may not be
served out of Queensland unless authorised by legislation. 11 In respect of service
outside of Australia it is the provisions in Part 7 of Chapter 4 of the Uniform
Procedure Rules 1999 (“UCPR”) and which incorporate the involvement of Australia

8
Claim, filed 29/08/19, at [1j].
9
Claim, filed 29/08/19, at [1k].
10
Claim, filed 29/08/19, at [1l].
11
Laurie v Carroll (1958) 98 CLR 310, at 322.
 6

in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in

Civil and Commercial Matters 1965 (“the Hague Convention”). The applicant has not
attempted to effect service pursuant to those provisions and expressly contends that
this “would have been a more costly and time consuming process” and would have
created issues to “communicate with the Birmingham process server, give him
directions or chase him up”. 12

[6] On 8 July 2020, the applicant filed a request for default judgement against the first
defendant in the sum of $568,805.70, including costs in the amount of $1,431.68.
Otherwise the judgement sum was expressed to be “calculated in accordance with the
particulars in the statement of claim calculated as follows:

Claim 1 $198,832.00
Plus Interest @ 20% p/a pursuant to Agreement as alleged in
Claim and Statement of Claim from 27/08/2019 to 3/07/2020 $ 33,790.57
Total of Claims 2 to 5 $323,747.57
Plus Interest on Total Claims 2 to 5 at default rate of 4% p/a
from 27/08/2019 to 3/07/2020 $ 11,003.88
Total claim and interest to 3/07/2020 $567,374.02” 13

[7] It is apparent that there were are number of difficulties with this Application, not the
least of which was identified in the Registrar’s Notice of Refusal, being the
appearance of absence of proof of personal service as required by UCPR 105 and 106.
Although that Application was supported by an “Affidavit of Service and
Enquires”, 14 it was, after reference to failure “to locate the First Defendant or any
property registered in his name at which he might be found” 15 or that the second or
third defendants were operating at any of several addresses given “in promotional
material published by [them]”, in the United Kingdom, deposed that:
“ ... at 11.30am on the 13th May 2020 I attended with my
colleague Christopher Atkinson at a residence provided to me as
the residence of the First Defendant’s parents, 82 Church Lane
Handsworth Wood Birmingham, and after knocking a person who
looked very much like the First Defendant (as pictured in
photographs provided to me by the Plaintiff’s Solicitors) came to
the door. I was standing next to Mr Atkinson when he asked the

12
Applicant’s Additional Written Submissions, filed 27/08/20, at p 3.
13
Application for Default Judgment against the First Defendant, filed 08/07/20, at p 1.
14
Affidavit of Daniel Gibbon, filed 8/7/20.
15
Affidavit of Daniel Gibbon, filed 8/7/20, at [1].
 7

person at the door “Are you Shajahan Karim?” and the person
replied that he was his brother, but that his brother (the First
Defendant) was inside the house.

Mr Atkinson then said “I have some documents here for Mr

Karim, will you give them to him?” The person served said “Yes
I will take them in”, and received the sealed copies of the Claims
& Statement of Claim open for inspection with the Notice under
the Service and Execution of Process Act attached to the front.”16

[8] Leaving aside the extraterritorial considerations, this was insufficient evidence of
personal service as required by UCPR 282, so that default judgement sought by the
applicant may have been given. It may also be noted that the Application for default
judgment had been problematically expressed to be brought pursuant to UCPR 283-
287 and 289, but also for “debt liquidated claim”. That is, in respect of any monetary
sum which is ascertained or capable of being ascertained by calculation by the use of
a formula, rather than being ascertainable only by an assessment which involves the
exercise of a discretion or an opinion. 17

[9] Next and in response to a suggestion raised in the Deputy Registrar’s Notice of
Refusal, the applicant filed an Application on 27 July 2020 for the allowance of
informal service upon the first defendant, pursuant to UCPR 117. In addition to the
earlier filed affidavit of the process server in Birmingham, some further material was
filed to support contentions that no confirmation could be found of the legal
qualifications said to have been claimed by the first defendant, his elusiveness and
what is said to be the financial distress being experienced by the applicant in the
absence of her realisation of her Michigan investments. That Application was
subsequently superseded by the Application filed 12 August 2020, which is now
before the Court in respect of the issue of service on all three defendants.

[10] However and prior to that Application and on 27 July 2020, the applicant also applied
for default judgment against the second and third defendants. Again the Application
is in express reference to UCPR 283-287 and 289 and also for “debt liquidated claim”.
It is convenient to note that whatever may be said as to claims 1 to 4, to the extent
that the causes of action involved are clarified, it necessarily follows that claim 5 may
not be described as being for a debt or liquidated sum.

16
Affidavit of Daniel Gibbon, filed 8/7/20, at [2]–[3].
17
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, at 142.
 8

[11] The judgment sum sought against both defendants is $570,521.47 and expressed to
be calculated as follows:
“The plaintiff therefore claims judgment against the Second & Third
Defendants as follows:-
Claim 1 $198,832.00
Claims 2-5 $323,747.57
Interest as aforesaid $44,794.45
Costs $3,147.45
Total judgment against Second & Third Defendants $570,521.47
The Plaintiff also claims further interest against the Second & Third
Defendants on the amount of Judgment to the date of payment or
satisfaction pursuant to part 8 of the Civil Proceedings Act 2011.” 18

The calculation of interest is set out as follows:

“The claim against the Second & Third Defendants on Claim 1 for
A$198,832.00 plus interest at 20% per annum from the 27th August
2019 to the 3rd July 2020 and for the balance of for Claims 2, 3, 4 & 5
from the 27th August 2019 to 3rd July 2020 pursuant to Part 8 of the
Civil Proceedings Act 2011 together with further interest thereon
pursuant to the said section and costs and outlays as a debt liquidated
demand with interest.

The amount of interest claimed to the 1st July 2020, calculated in

accordance with the particulars in the statement of claim, is $44,804.45
calculated as follows:-
Claim 1 – interest @ 20% p/a pursuant to the Agreement on
$198,832.00 from 27th August 2019 to the 3rd July 2020
$33,790.57

The plaintiff also claims $1,400.05 costs as prescribed made up as

follows:
Claims 2 – 5 – interest @ 4% p/a pursuant to Part 8 of the Civil
Proceedings Act 2011 $11,003.88
Total Interest $44,794.45” 19

Curiously, there is reference again to the affidavit of the Birmingham process server,
but filed with the Application was an affidavit of the applicant’s solicitor, 20 asserting
that service on each of the second and third defendants had occurred in accordance
with UCPR 112, on the basis of his “causing international registered post letters to be
sent to the Second & Third Defendants at their respective registered offices and also
advertised places of business in the United States of America and in the United
Kingdom”, without any response or return of such mail. However, it must be noted

18
Application for Default Judgment against Second and Third Defendants, filed 27/07/20, p 2.
19
Application for Default Judgment against Second and Third Defendants, filed 27/07/20, p 1.
20
Affidavit of CP Reeve, filed 27/7/20.
 9

that there is nothing in the exhibited material which appears to relate to any register
or registered address, as opposed to advertised places of business. Moreover there is
the added difficulty that such addresses are, on the face of the materials provided,
linked to differently represented corporate names; respectively, in respect of the
second defendant: “Sovereign &Co”, “Sovereign Estates LLC” and “Sovereign Sales
Llc” and in respect of the third defendant: “Detroit Investment Company”, “Detroit
Investment Co.” and “Detroit Invest”.

[12] Because each of the United Kingdom and United States of America is a “Hague
Convention Country”, within the meaning of that defined term in UCPR 130A, 21 the
Deputy Registrar’s Notice of Refusal of that Application, dated 29 July 2020, draws
attention to the Hague Convention and Chapter 4, Part 7, Division 3 of the UCPR,
and states:
“In all instances, an application for service of documents overseas
needs to be made to the Supreme Court. If the service relates to a
matter in the District Court or Magistrates Court, the application
is to be treated as an originating application. (Form 5) There is no
fee payable to file the originating application with the Supreme
Court. Additionally, you need to file in triplicate a Form 10A, 10B
and 10C. You should contact the Supreme Court if you have any
further queries in relation to the process.

As service has not been effected in accordance with The Hague

Convention your request for default Judgment against the second
and third defendant is refused.

Please also advise whether you wish to proceed with your

application to the Court for Informal Service in relation to the first
defendant as service was not effected in accordance with the
Hague Convention.”

[13] However, it is made expressly clear for the applicant that her Application is seeking
to avoid the strictures and requirements of those provisions, albeit in expressed desire
to alleviate what is asserted to be her parlous circumstances and in expectation of
vindication of what are contended as her valid claims, upon what is also contended to
have been effective service on the defendants. For instance, there are the following,
albeit somewhat argumentative, assertions in the affidavits filed by the solicitor for
the applicant:

21
https://www.hcch.net/en/instruments/conventions/status-table/?cid=29
 10

“I also say that all three (3) Defendants have been effectively
served with these proceedings, and if the First Defendant has legal
qualifications he purports to have, he should have complied with
the notices given in the Court proceedings to file a Notice of
Intention to Defend and Defence and also to properly object to
this jurisdiction of this Court, and I further say that it would be a
travesty of justice if the Plaintiff is further delayed in recovering
the damages she has suffered as a result of the Defendants’ action,
and should be allowed to proceed to judgment notwithstanding
the objection to jurisdiction, allow the informal service on the
Defendants as per the Plaintiff’s Applications, and also allow the
Plaintiff’s request for Judgment by Default to proceed.” 22

And further, at page 4 of the Applicant’s Written Submissions, filed 27 August 2020,
it is contended:

“I say that it would have been an unnecessary and expensive as

well as a lengthy process for the Plaintiff to have to apply to the
Supreme Court for Orders that the Supreme Court then forward
the documents to the Court in Michigan for the Court in Michigan
to then send the documents by certified post to the Second &
Third Defendants at their registered offices, and then the Plaintiff
would have to wait for the reply from the District Court of
Michigan to the Supreme Court of Queensland and then wait for
the reply from the Supreme Court of Queensland to this firm
regarding that service having been effected. The same
considerations apply to delays and costs of Hague Convention
service of the First Defendant.” 23

The Application

[14] It is in this context that the Application, filed on 12 August 2020, and which is now
before this Court, is as follows:

“1. That the Court allow informal service to have been effected
upon all the Defendants pursuant to Rule 117 of the Uniform
Civil Procedure Rules and particularly based on the following
rules.
2. That pursuant to Rule 107, service on the Second & Third
Defendants as companies is deemed to be effected pursuant to
the Plaintiff having posted the Claim & Statement of Claim to
the Second & Third Defendants to the companies’ registered
22
Affidavit of CP Reeve, filed 21/08/20, at [4].
23
It may be noted that as the issues to be discussed may well indicate, such a view may well be
contestable, particularly in contrast to the potential advantages of the obtaining confirmation as to
service effected in accordance with the law of the jurisdiction involved, pursuant to adoption of the
approved procedures and as anticipated by UCPR 130F and which is then given particular evidentiary
effect by UCPR 130H.
 11

offices pursuant to s 109X(i)(a) of the Corporations Act and

pursuant to Rule 112(d) by posting it to the relevant address,
which pursuant to sub-rule 112(3)(c) for the corporations are the
corporations head office or its principal or registered offices.
3. That pursuant to Rule 125, the originating process may be
served outside Australia without leave under sub-rule 125(n) as
Claim 1 was based on the Joint Venture Agreement entered into
between the Plaintiff and the First Defendant at Noosaville in
this District and pursuant to sub-rule 125(s) the Claim so far as
it concerns the First Defendant falls partly or within one or more
of paragraphs (a) to (r) and specifically paragraph (n) and as to
the residue within one or more the others from paragraphs (a)
through (r) and including Rule 125(f) relating to breaches of
trust of the written instrument which ought to be carried out or
discharged in accordance with Australian law by the First,
Second & Third Defendant pursuant to Claims 2 through to 5
inclusive.
4. That pursuant to Rule 125F informal service of the originating
process in this matter may be served outside Australia without
leave as pursuant to sub-paragraph (n) thereof, Claim 1 is
founded on a cause of action arising in Queensland in that the
Joint Venture Agreement between the Plaintiff and the First
Defendant was entered into at Noosaville Queensland in this
District.
5. That pursuant to sub-paragraph 125F(r), the Claim so far as the
First, Second & Third Defendants falls partly within one or
more of paragraphs (a) to (q) (that is paragraph (n)) and further
that the breaches of trust alleged by the Plaintiff against the
First, Second & Third Defendants arose pursuant to their failure
to discharge the trusts on the written instrument which was
entered into in this District pursuant to sub-paragraph (f) such
breaches being effected by the First, Second & Third
Defendants as alleged by the Plaintiff in Claims 1 through to 5
inclusive.
6. That pursuant to informal service having been allowed on the
First, Second & Third Defendants and proven as per the
Affidavit of Daniel John Gibbin sworn 28th May 2020 and the
Affidavits of Christopher Parker Reeve sworn 23rd July 2020
and (sic) day of August 2020 filed herewith that Default
Judgment be granted against the First, Second & Third
Defendants.
7. That the costs of this Application and the Application filed 27th
July 2020 be granted and awarded to the Plaintiff in addition to
the costs of Default Judgment.
8. Such further or other Orders as to this Court may seem just.”
(emphasis omitted)
 12

[15] In his affidavit filed with that Application, 24 the solicitor for the applicant effectively
contends for findings that in circumstances where this proceeding may be served
without the leave of the court pursuant to UCPR 129F(f) and/or (n), there has been
informal service on the first defendant pursuant to UCPR 117 and that service has
been effected upon the other corporate defendants pursuant to UCPR 112. In support
of these contentions, reliance is placed upon:

(a) The affidavit of Mr Gibbon (the Birmingham process server); and

(b) In addition to contending that the first defendant is a director of each of the
other corporate defendants and the earlier provided evidence of the sending of
the documents by post to identified addresses in respect of the corporate
defendants, there is reference to:

(i) A printout of a website which links the company “Sovereign & Co” to a
location in Birmingham UK and also the address to which
correspondence was forwarded in Michigan US; and

(ii) An email chain said to have resulted in the applicant’s solicitor being:
“informed by Jelani Karamoko Esquire, Attorney
practicing at 535 Grisword Suite 2300 Detroit Michigan
48226 USA and verily believe that it is proper and effective
service upon a corporation for process to be posted by pre-
paid envelope to the corporation at its registered office or
place of business…”

It should be noted that the email is in response to the request of the

applicant’s solicitor that “I really need Jelani to email me to say it’s
satisfactory service of legal processes upon a company in Michigan to
post it to its reg’d office or principal office/place of business”. And the
response, noted to be by “Jelani Karamoko Esq” of “Karamoko Group
PLC” with reference to an address in Detroit Michigan, was:

“Hello Chris, yes service is proper by certified mail to the

registered office and addressed to the resident agent of the
Michigan company.
Thank you and let me know of any other questions”; and

24
Affidavit of CP Reeve, filed 12/8/20.
 13

(iii) What is mistakenly asserted to be acknowledgment by “email letter from

the Law Offices of Dean Koulouras…” in which he states that he acts
for the third defendant and otherwise acknowledges receipt of the
originating process. What is actually stated in the letter from Mr
Koulouras is:

“I represent Detroit Investment Company. My client

recently received some documents labelled “Claim” from
the District Court of Queensland. You will need to contact
the U.S. Department of State to determine how to obtain
service of process on my client. I recommend that you
dismiss Detroit Investment Company from the lawsuit and
refile in the Wayne County Circuit Court, which is in the
appropriate court of jurisdiction.
In order to save you some time and expenses, my client
never represented the property in issue, If you have some
documentation that indicates otherwise, please forward a
copy to my attention.”
[16] It is also necessary to note that there is no cause of action identified in the applicant’s
Claim, as made against the third defendant. And neither can it be said that this position
is meaningfully advanced in the Statement of Claim. The only reference to the third
defendant is in respect of the second claim, on the basis of assertions that: 25

(a) the applicant engaged the first defendant to sell her property at 1631
Westchester Street Westland Michigan (“Westchester”);

(b) by contract dated 18 January 2017, she sold that property for $65,000;

(c) the purchaser executing that contract, was “the First Defendant on behalf of the
Third Defendant ‘Detroit Invest Corp’; and

(d) an internet search indicates the on-sale of that property “for US $118,000
registered after settlement on 19 July 2017 without registration of the
intervening purchase by the Third Defendant from the Plaintiff for US
$65,000”.

It is later pleaded:

“[49] In the circumstances the Plaintiff has been deprived of the profit
of which the First, Second and/or Third Defendant made at the
expense of the Plaintiff of US$53,000.00 from the 10th July 2019
and claims that amount together with interest thereon to the date
25
See Statement of Claim, filed 29/8/19, at [41], [43] and [46].
 14

of payment of Judgment pursuant to Section 58 of the Civil

Proceedings Act.”

However and whilst there are some contextual pleadings as to the first defendant’s
relationship as attorney and agent of the applicant, and representations as to his
association with something referred to as “Detroit Invest”, there is no pleading as to
any basis upon which the third defendant is liable to the applicant, or even as to it
being an entity capable of being sued. 26

[17] In addition to what has been noted as to the evidence before the Court as to attempts
to personally serve the first defendant, the following is also deposed by the applicant’s
solicitor (without the described correspondence being exhibited): 27

“I received an email letter from the First Defendant which also stated
that he was writing on behalf of ‘Sovereign & Co’ on the 19 May 2020,
which was a four(4) page letter and part of which was headed
‘jurisdiction’ with a later sub-heading ‘moving forward’ as is sighted
in his ‘letter’ to Plaintiffs’ Solicitors regards jurisdiction’. I
respectfully refer this Honourable Court to the fact that the First
Defendant states that he emailed this letter to me on the 18 May 2020,
which I note was a short time after his brother was personally served
and thereafter I would submit he was formally served with these
proceedings on the 13 May 2020, which enlivened his response, and I
therefore say that he has full notice of and has effectively been served
with these proceedings.”

[18] Subsequently and in the written submissions of the applicant, 28 it is effectively

contended that it is to be inferred from this evidence that the first defendant “was
obviously thereby acknowledging service of the proceedings”. And it is then further
contended that:

“This is further evidenced by his recent email to the Court referred to

in my Affidavit sworn today and filed herewith, on which he confirms
he wrote to me on 18 May 2020 complaining about the plaintiffs
choice of jurisdiction. I therefore submit that the First Defendant came
into possession of the Claim and Statement of Claim on 13th day of
May 2020 and the court should be satisfied he has been informally
served pursuant to r 117. To have applied to the Supreme Court for
Hague Convention Orders would have been a more costly and time
consuming process and I would not have been able to communication

26
There is only the assertion in paragraph [3] of the Statement of Claim that “[a]t all material times the
“First Defendant was and is a director and sole shareholder of the Second and Third Defendants.”
27
Affidavit of CP Reeve, filed 21/8/20, at [2].
28
Filed 27/8/20.
 15

with the Birmingham process server, give him directions or chase him
up.” 29

[19] That is in reference to a communication received at the Registry of the District Court
at Maroochydore, on 19 August 2020 and therefore shortly prior to the allocated
return date of the Application (filed 12 August 2020), on 21 August 2020. In
accordance with the directions of the court, that correspondence, which purported to
be an email from “Shajahan Karim” and the email address
“ShahKarim<[email protected]>, was emailed to the applicant’s solicitor and also by
response email, it was indicated that this had occurred, that the court “would give due
consideration” to the correspondence at the hearing and that the sender of the email
was permitted to appear at that hearing “at 11.15am (Qld time) on Friday 21 August
2020”, by telephone (with details as to doing so by “Chorus Call” provided).

[20] It may be observed that despite there being in the court room, at or shortly after
11.15am and when hearing this Application on 21 August 2020, some familiar
audible indicia of external engagement of the Chorus Call facility, there was no
response to any of multiple invitations of the Court for anyone who had so engaged
the Chorus Call facility to identify themselves. 30

[21] At that hearing on 21 August 2020, the applicant’s solicitor did not seek to tender the
email correspondence which had been provided by the court. Accordingly, a copy of
the correspondence, including and related to that email, was marked “A”, so as to be
identified and retained with the record. When the matter was then reserved for
decision that was subject to directions that the applicant file a written outline of
submissions and any further material to be relied upon. It would therefore appear that
the applicant now seeks to rely upon the materials marked “A”, particularly in the
light of the following assertions in the further affidavit of her solicitor: 31

“With regard to the question of service upon the First Defendant, I

respectfully refer this Honourable Court to the email letter sent to this
Court by the First Defendant, whom I asked the Court to take notice is
also the principle officer of the Second & Third Defendants, dated 18
August 2020 and referred by this Court to me, in which he states that
he has become aware of these proceedings against him and his
companies. I also say that his implication that he only became aware

29
Affidavit of CP Reeve, filed 27/08/20, at p 3.
30
Although, it must also be noted that this Chorus Call facility had been made available to other litigants
and practitioners in respect of other matters listed for hearing on that day.
31
Affidavit of CP Reeve, filed 27/8/20, at [2].
 16

as a result of an on-line search is a subterfuge, as it is highly unlikely

that a person would search your Court on-line without some prior
notice of these proceedings. I also refer to my earlier Affidavit sworn
20 August 2020 in which I point out that the First Defendant’s email
letter to me dated 18 May 2019 was almost certainly prompted by his
having been served (the documents having been delivered to his
brother whilst he was inside the same premises) on 13 May 2020 by
Daniel Gibbin.”

The email to which reference is made and the attachments to it, which include a copy
of the email dated 18 May 2019 (as those documents were forwarded by the Deputy
Senior Registrar to my associate on 19 August 2020), are annexed to these reasons.

[22] Salient features to note include that there is express reference to the parties named in
and number assigned to the Claim filed on 29/8/19 and the registry in which it was
filed. Whilst all of the information is available upon the Queensland Courts website
as e-file information, there is no direct explanation as to what prompted the online
search, to which reference is made. Also and in the context of reference to “a case
filed in the 3rd Circuit Court of Wayne County, Michigan, USA”, it is asserted:

“The claim is concerning the Plaintiff’s USA property located in the

State of Michigan, USA and she contracted for property management
and building services to her property undertaken by the defendants
located in the State of Michigan, USA.”

And that it is otherwise contended for various reasons, that this Court does not have
jurisdiction in respect of the plaintiff’s claims.

Discussion

[23] As has been noted, the ultimate aim of the Application filed on 12 August 2020, is to
obtain default judgment against the named defendants. Quite apart from what has
already been noted as to the absence of specification as to which of the provisions of
Chapter 9, Division 2 of the UCPR would authorise or provide the power to grant any
such judgment, it is to be noted that pursuant to UCPR 281, the application of the
division is premised upon the consideration that there has been no filing of a notice
of intention to defend in response to a claim “and that the time allowed under rule
137 to file the notice has ended”. Also and pursuant to UCPR 282, it is provided that:
 17

“A plaintiff must prove service of a claim on a defendant in default

before judgment may be given under this division against the
defendant.”

However and in respect of the service of originating process outside of Australia, it

is necessary to have regard to UCPR 128 and 129, 32 in that:
(a) UCPR 129 makes Chapter 5 of the UCPR, which relates to notices of intention
to defend and related matters and includes UCPR 137, applicable, subject to
the consideration that:
“Unless the court orders otherwise, rule 137 applies to the
proceeding as if the reference in rule 137(1) to 28 days were a
reference to 42 days”; and
(b) UCPR 128 requires that any originating process to be served outside of
Australia to be served with “a notice in the approved form informing the
person of—
(a) the scope of the jurisdiction of the court in respect of claims
against persons who are served outside Australia; and
(b) the grounds alleged by the plaintiff to found jurisdiction;
and
(c) the person’s right to challenge service of the originating
process or the jurisdiction of the court or to file a
conditional notice of intention to defend.”

It is further provided that if the service is “by leave of the court, the notice
must list the affidavits relied upon to obtain the court’s leave”.

[24] Accordingly, it may be noted that it is necessary to notify a served defendant as to the
basis upon which it is contended that the jurisdiction of the court is engaged. An
immediate problem here is that the notice which is attached to the Claim does no such
thing. This is primarily because it is not in the form of a notice which could be
approved under UCPR 128 but rather an adaption of a form to be used as is expressly
stated when:

“Service of the attached process outside Queensland is authorised by

the Service and Execution of Process Act 1992”.

That Act does not authorise service of process outside of Australia, as opposed to
service within Australia but outside the State or Territory in which the process is
issued. There are also other difficulties relating to the lack of adaption of alternatives

32
Each of which are made applicable to District Court proceedings, by UCPR 129H.
 18

in the form, to the particular circumstances, and an inapt reference to 21 days to “file
an appearance”.

[25] Otherwise, there are two essential aspects to this Application. In the first instance,
that service of the originating process is permitted without the necessity for a grant of
leave to do so. And ultimately, that there has been informal service, in accordance
with UCPR 117. Although varying references are made to UCPR 125, 125(f) and
125F, it is the application of UCPR 129F which would allow for service of this
originating process without the leave of the Court. This is because pursuant to UCPR
129E, it is Subdivision 2 of Division 1 of Part 7 of Chapter 4, which is applicable to
District and Magistrates Courts proceedings.

[26] Such leave may be obtained pursuant to UCPR 129G and it is convenient to note that
in order to do so and in effecting the service for which leave is granted, it is necessary
that:

“(3) An application for leave under this rule must be supported by

an affidavit stating any facts or matters related to the
desirability of the court assuming jurisdiction, including—
(a) the place or country in which the person to be served is or
possibly may be found; and
(b) whether or not the person to be served is an Australian
citizen.
(4) The court may grant leave under this rule if satisfied—
(a) the claim has a real and substantial connection with
Queensland; and
(b) Queensland is an appropriate forum for the trial; and
(c) in all the circumstances the court should assume
jurisdiction.
(5) A sealed copy of an order made under this rule must be served
with the document to which it relates.”

[27] Some attention is required to the structure and interaction of the provisions of Chapter
4 of the UCPR. In the first instance, this is because UCPR 117 is found in Part 5 of
Chapter 4, noting that it is the successive Parts 6 and 7 which separately deal with
extraterritorial service, respectively in respect of service outside of Queensland and
Australia. It may be noted that some of the provisions in Part 5, including UCPR 117,
allow for various departures, by court order, from the earlier specified requirements
for service within Queensland and as provided in Parts 1 to 4. The Deputy Registrar’s
 19

initial reference to UCPR 117 may be understood in noting that the rule is expressed
to apply and operate as follows:

“117 Informal service

If—
(a) for any reason, a document is not served as required by this
chapter but the document or a copy of it came into the
possession of the person to be served; and
(b) the court is satisfied on evidence before it that the document
came into the person’s possession on or before a particular day;
the court may, by order, decide that the possession of the document
is service for these rules on the day it came into the person’s
possession or another day stated in the order.”

[28] However and as appears from the later response to the request for default judgment
filed on 27 July 2020, “further enquiries” resulted in the applicant’s attention being
particularly drawn to Chapter 4, Part 7, Division 3 of the UCPR. That Division
contains UCPR 130B which provides:

“130B Provisions of this division to prevail

If the provisions of this division are inconsistent with any other
provisions of these rules, the provisions of this division prevail to the
extent of the inconsistency.”

And it is also necessary to note UCPR 130, which is expressed to apply if a person:

“(a) is required by a convention to serve a document in a convention

country in accordance with the convention; or
(b) otherwise wants to serve a document in a convention country in
accordance with a convention.”

UCPR 130 is the only rule in Part 7, Division 2 and by UCPR 100, the following
definitions are provided:

“convention, for part 7, division 2, means an agreement,

arrangement, treaty or convention, relating to legal proceedings in
civil matters, made between Australia and another country.
convention country, for part 7, division 2, means a country other
than Australia to which a convention applies.”

If applicable, the rule proceeds to provide for mandatorily expressed requirements for
service to be effected through a relevant registrar and the Attorney-General.

[29] Division 3 applies to service under the “Hague Convention”, defined in UCPR 130A
as “the Convention on the Service Abroad of Judicial and Extrajudicial Documents
 20

in Civil or Commercial Matters done at the Hague on 15 November 1965”. And the
notes immediately after the heading to “Subdivision 1 – Preliminary”, indicate as
follows:
“Notes—
1 This division was developed by the Council of Chief Justices’ Rules
Harmonisation Committee and forms part of a scheme to implement
Australia’s obligations under the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters. Under the convention, the Attorney-General’s
Department of the Commonwealth is designated as the Central
Authority (under article 2 of the Hague Convention) and certain courts
and government departments are, for certain purposes, designated as
‘other’ or ‘additional’ authorities (under article 18 of the Hague
Convention).
2 This division provides (in subdivision 2) for service in overseas Hague
Convention countries of local judicial documents (documents relating
to a proceeding in the Supreme Court, the District Court or a
Magistrates Court) and (in subdivision 3) for default judgment in a
proceeding in the court after service overseas of such a document.
Subdivision 4, on the other hand, deals with service by the Supreme
Court or arranged by the court in its role as an other or additional
authority, of judicial documents emanating from overseas convention
countries.
3 Information about the Hague Convention, including a copy of the
Hague Convention, a list of all Hague Convention countries, details of
declarations and reservations made under the Hague Convention by
each of those countries and the names and addresses of the Central
Authority and other or additional authorities of each of those countries,
may be found on the website of the Hague Conference on Private
International Law.”

[30] Reference to the Hague Convention, to which Australia, the United Kingdom and the
United States of America are each party, confirms a requirement of service in
accordance with it, except “where the address of the person to be served with the
document is not known.” 33

[31] It should also be noted that UCPR 129D provides that:

“A document to be served outside Australia need not be personally

served on a person as long as it is served on the person in accordance
with the law of the country in which service is effected.”

[32] An essential difficulty with the applicant’s approach in respect of the issue of service
on the second and third defendants is in the attempt to rely upon laws which are
applicable to service in Australia, in the context of expressly seeking to avoid
engagement of the Hague Convention provisions in Division 3. Accordingly, resort

33
See the Hague Convention at www.hcch.net, at article 1.
 21

to s 109X of the Corporations Act 2001 (Cth) and UCPR 107 and 112, are of no avail
to the applicant.

[33] Further, the tersely expressed email from Mr Karamoko, does little to properly engage
UCPR 129D. And an underlying flaw in the applicant’s approach is that no attempt
is made to establish any registered address of the corporate defendants by reference
to evidence of any such register or public record and, as has been noted, little regard
has been paid to differences in nomenclature, which may well indicate different, even
if related, corporate entities. As has been noted above, there is an apparent error of
this kind in respect of the correspondence from Mr Koulouras. 34

[34] In the circumstances, there is simply no basis for concluding that there has been any
service, informal or otherwise, upon the second or third defendants. Also there has
been

[35] Also, there has been no attempt to serve the Application filed on 12 August 2020.
However and notwithstanding any express such application, having regard to UCPR
129B(2) an application made pursuant UCPR 129B(1), in the absence of the filing of
a notice to defend, would not require service of “notice of the application on the
person served with the originating process”. That of course begs the question as to
whether there has been such service, informal or otherwise.

[36] In respect of the first defendant, there may, in the circumstances which have been
outlined, be a basis for concluding that the first defendant has knowledge of both the
Claim and this Application. There may also and as required by UCPR 117, be a basis
for concluding that the documents left by the Birmingham process server have come
into his possession and that he has within the meaning of UCPR 117 been informally
served with those documents. However and even if it be assumed that UCPR 117 may
be relied upon in respect of service outside of Australia, it could only be upon a
conclusion that a sued party has come into possession of the document which
complies with the requirements of UCPR 128, which for the reasons given above is
not available here. 35 Further, it would not appear to be an appropriate exercise of the
Court’s discretion to determine there had been informal service unless the claim was

34
See para [15(iii)], above.
35
See above at [23]–[24].
 22

amenable to overseas service, including without the need for first obtaining the leave
of the Court to do so.

[37] This is particularly because it may be discerned that the applicable rules are
particularly concerned, from the outset, with the identification of a basis upon which
the relevant Queensland Court has jurisdiction in respect of the claim and is an
appropriate forum for adjudication of it. For example UCPR 129G(4) provides: “The
court may grant leave under this rule if satisfied—
(a) the claim has a real and substantial connection with Queensland;
and
(b) Queensland is an appropriate forum for the trial; and
(c) in all the circumstances the court should assume jurisdiction.”

And it is only in the circumstances specified in UCPR 129F and which each depend
upon some relevant connection to Queensland, that process may be served outside of
Australia without first obtaining the leave of the Court in which the originating
process is filed. 36

[38] A further indication of this underlying intent of the rules is to be found in UCPR 128,
which more fully provides:
“128 Notice to person served outside Australia
(1) If a person is to be served outside Australia with an originating
process, the person must also be served with a notice in the
approved form informing the person of—
(a) the scope of the jurisdiction of the court in respect of claims
against persons who are served outside Australia; and
(b) the grounds alleged by the plaintiff to found jurisdiction;
and
(c) the person’s right to challenge service of the originating
process or the jurisdiction of the court or to file a
conditional notice of intention to defend.
(2) Also, if the service of the originating process is by leave of the
court, the notice must list the affidavits relied on to obtain the
court’s leave.”

36
That is because the reference to “The court” in UCPR 129G(1) appears to be referrable to the terms of
UCPR 129E, which makes subdivision 2 applicable “for a proceeding in the District Court or a
Magistrates Court.” And as provided in UCPR 3(2): “In a provision of these rules, a reference to the
court is a reference to the court mentioned in subrule (1) that is appropriate in the context of the
provision.”
 23

Conclusions

[39] Despite the indicia of the first defendant’s flirtatious engagement with the Court and
irrespectively of the conviction expressed as to the applicant’s entitlement to and need
for the prompt engagement of this Court in order to vindicate her rights, and the
attention of the Court to rationalisation of the convolutions of the materials relied
upon by the applicant, there are substantial impediments to this Application and it is
not amenable to being allowed.

[40] The first difficulty is that what is sought to be determined is informal service of a
claim which has been filed with an inapt notice so as to enable overseas service. It is
not a notice in or in any way substantially, in the approved form contemplated by
UCPR 128. The form used makes express reference to the Service and Execution of
Process Act 1992 and incorrectly asserts that:

“Service of the attached process outside Queensland is authorised by

the Service and Execution of Process Act 1992”.

It appears to be an adaption of a form which may be applicable to service of

originating process in parts of Australia outside of Queensland, by the assertion:

“These proceedings are to be served out of the State of Queensland

Australia and in the United Kingdom and the United States of
America.”

[41] More particularly, there is an absence of any compliance with UCPR 128(1)(a), (b)
or (c). And quite apart from any sense of confusion in the document due to the
omission or deletion of footnoted alternatives, an inapplicable statement as to a period
of “only 21 days” to “file an appearance” to contest the claim, also appears.

[42] Secondly, there is considerable difficulty in discerning any appropriate basis upon
which it is asserted that this originating process was amenable to service outside of
Australia, without leave first obtained pursuant to UCPR 129F. Leaving aside the
noted difficulty of inappropriate reference to UCPR 125, the equivalent specific
references are to UCPR 129F(f) and (n). It can be immediately observed that:

(a) there is no justification for reliance on UCPR 129F(f) on the stated basis that
“the First, Second & Third Defendants were in breach of their duties and
positions of trust owed by the First, Second & Third Defendants to the Plaintiff
 24

as a person, corporations and companies respectively having possession and

control of the Plaintiff’s monies and assets, in the circumstances that as per the
Plaintiff’s Statement of Claim, the First, Second & Third Defendants breached
those trusts” 37 or any other basis; and

(b) neither is it demonstrated that there is any claim which “is founded on a cause
of action arising in Queensland”, pursuant to UCPR 129F(n). As noted in Voth
v Manildra Flour Mills Pty Ltd, 38 whilst it is not necessary that every element
of the cause of action has occurred in Australia, the focus is upon the act or
omission of the defendant which gives the plaintiff cause for complaint.
Leaving aside some difficulty in discernment of precise causes of action for
each of the claims made, it may be discerned that the gravamen of particularly
claims 2 – 5 relate to acts or omissions which occurred outside of Australia. 39

[43] It would appear that the nexus upon which the applicant seeks to proceed is that she
executed a “Joint Venture Agreement” and other documents with the first defendant
at Noosaville and otherwise “relied upon promises, statements and representations of
the [defendants] received by her in this District”. 40 Notwithstanding that no such
express contention is made, this may be capable of being directed at the engagement
of UCPR 129F(b), which in part provides:
“129F When service allowed without leave
An originating process may be served outside Australia without
leave in the following circumstances—
…
(b) if the claim is for the enforcement, rescission, dissolution,
annulment, cancellation, rectification, interpretation or
other treatment of, or for damages or other relief in respect
of a breach of, a contract that—
(i) was made or entered into in Queensland; or ...”

However and perhaps the explanation for the absence of express reference to any
equivalent to this provision is in understanding that for there to be a contract that was
made or entered into in Queensland, it is necessary to look beyond the mere fact that
the applicant dealt with it here in Queensland and necessary to understand how the
acceptance of an offer was communicated and the method of that communication, in

37
Affidavit of CP Reeve, filed 12/8/20, at [3].
38
(1990) 171 CLR 538, at 566-70.
39
See Affidavit of CP Reeve, filed 21/8/20, at [3].
40
Affidavit of CP Reeve, filed 12/8/20, at [4]; Applicant’s Written Submissions, filed 27/8/20, at p 4,
last paragraph and cf: Statement of Claim filed 29/8/19, at [4]-[7].
 25

order to determine the place where that such acceptance was communicated and
therefore where the final act regarded as completing the contract occurred. 41

[44] Accordingly the following, as pleaded in the Statement of Claim, is of little assistance
in respect of the first claim:

“5. The First Defendant executed the Agreement on behalf of

the Second Defendant on a date unknown, and tendered the
Agreement by pose or mail to the Plaintiff, which thereby
constituted an offer to enter into the Agreement capable of
acceptance by the Plaintiff.

6. The plaintiff received an original of the Agreement on or

about the 1st day of October 2014, which original was
already signed by the First Defendant on behalf of the
Second Defendant, and she executed the Agreement on or
about the 1st day of October 2014 at the Plaintiff’s residence
at 1/31 Bluefin Court Noosaville Queensland in this
District.

7. The Agreement was therefore entered into in this District.”

Otherwise and whilst made difficult by the narrative style of pleading which follows,
including in respect of many representations alleged against the first defendant and
references to evidentiary documents rather than material facts, it would appear that
this claim may be one for the enforcement of the “Joint Venture Agreement”. 42
However the effect of UCPR 129F(s) would nevertheless appear to be that this
originating process, to the extent it also contains other claims which may not be
brought within that rule, prevents the rule from applying to that process. 43

[45] There is no such application made, nor sufficient material to allow consideration of
an application for leave to serve the originating process under UCPR 129G. The
difficulties which have been noted with the pleadings, including but not limited to the
absence of any identified cause of action against the third defendant, might also be
relevant to any determination that “in all the circumstances the court should assume
jurisdiction”. 44 Although made in the context of an application made under an
analogue to UCPR 127, it may otherwise be noted that observations were made in

41
Express Airways v Port Augusta Air Services [1980] Qd R 543.
42
See Affidavit of CP Reeve, filed 21/8/20, at [3a] and Ex. A.
43
Cf: Borsch v Answer Products Inc [2000] QSC 379, at [27], noting the additional words: “and, as to
the residue, within 1 or more of the others of paragraphs (a) to (q)”, which now appear in UCPR
129F(s).
44
See UCPR 129G(4)(c).
 26

Borsch v Answer Products Inc, 45 to the effect that where service without leave is
permitted, it is not necessary that a plaintiff’s causes of action be properly pleaded
for the purposes of other rules, it being sufficient that the elements of the cause of
action are pleaded.

[46] Such concerns as to the identification of the basis of the claims sought to be pursued
is also relevant to the third concern in respect of the Application and particularly as
to the ultimate objective of obtaining default judgment. That is because of the absence
of attention to the implications of UCPR 129B, 46 which assuming that some basis
was identified for concluding that there had been relevant service of the originating
process on some person outside of Australia, would nevertheless require an
application for leave to proceed. And if the service is required or requested pursuant
to the Hague Convention, there are express restrictions set out in UCPR 130J – 130L
as to the Court’s power to enter default judgment.

[47] Fourthly, there would, in any event, remain the difficulty of identification of the
appropriate rule under which default judgment might be entered on any particular
claim and the need to confront the reality that most of them do not appear to be for a
debt or liquidated demand.

[48] In these circumstances, it is clear that the approach of the applicant to her claims
requires much and careful reconsideration and that her Application filed on 12 August
2020, must be dismissed.

45
[2000] QSC 379, at [18].
46
As picked up by UCPR 129H.
 27

Annexure
28
29
30
31