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[2026] QCA 61
respondent. Appeal dismissed. The appellant must pay the respondent’s costs of the appeal ([41]–[43]).
The Court of Appeal dismissed Coleman’s challenge to the dismissal of his application to stay enforcement of the Bank’s default judgment. It found that the Bank had followed the substituted service order and that Coleman had received the documents. Coleman did not apply to set aside the judgment or provide evidence suggesting a defence to the Bank’s claim. The Court also held that the primary judge did not deny him a fair hearing by stopping further oral submissions after repeated explanations and personal accusations. The appeal was dismissed with costs.
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2,391 words · generated 08/10/2026
The Commonwealth Bank of Australia commenced proceedings in the Queensland District Court against Ms Molluso and Scott William Coleman. The Bank alleged that they owned and possessed properties at Currumbin Waters and Dalby, had entered into two loan agreements secured by mortgages over those properties, and had failed to meet repayment obligations despite demands and default notices. It sought money, interest and possession of the properties ([7]).
1 cited instrument linked from this judgment.
The Bank first obtained default judgment against Ms Molluso on 20 March 2024. The judgment ordered payment of $274,581.10, including interest to the judgment date, and $4,708.65 in costs, and authorised recovery of possession of the properties ([8]). Ms Molluso did not seek to set that judgment aside and did not participate in Coleman’s later application or appeal ([9]).
The service issue arose because the Bank did not personally serve Coleman. On 10 July 2024, Judge Jarro made an order under UCPR r 116 dispensing with personal service and allowing service by posting the claim and order to an identified Currumbin Waters address. The order specified that service would be deemed to occur four business days after the Bank completed the ordered steps ([10]–[12]).
The Court of Appeal found that the Bank complied with the order. It also considered evidence about an envelope Coleman returned to the Bank’s solicitors. The envelope was marked “3/8/2024 received”, along with other handwritten statements. The Court inferred that Coleman had received the envelope and its contents, probably on 3 August 2024. It rejected the suggestion that an unsealed envelope meant he was not required to respond to the documents ([16]–[19]).
Coleman did not file a notice of intention to defend within the relevant period. On 11 September 2024, the Bank obtained default judgment against him for $283,339.72, including interest to the judgment date, and $4,544.20 in costs, together with relief for possession of the properties ([20]–[21]).
Coleman did not apply to set aside that judgment. Instead, he applied for a stay of enforcement and raised other arguments, including a claim that the District Court lacked jurisdiction over what he described as “Equitable Rights” ([22]–[23]). Judge Clare SC granted an interim stay, required the Bank to provide documents, and gave Coleman until 23 October 2024 to file and serve an amended application and supporting material ([24]–[25]).
At the hearing before Judge Barlow KC, Coleman appeared by audio-visual link. The judge explained that Coleman had not filed a defence and that, if he wanted the default judgment set aside, he needed to apply for that relief and provide affidavit evidence showing a good arguable defence. The judge considered Coleman’s affidavits and concluded that they did not show such a defence ([27]–[30]). During the hearing, Coleman continued to talk over the judge and made accusations against the judge and the Bank’s representatives. Judge Barlow muted Coleman, lifted the interim stay and dismissed the stay application ([31]–[33]).
The Court of Appeal, comprising Bond JA, Doyle JA and Crowley J, dismissed the appeal with costs. Doyle JA and Crowley J agreed with Bond JA’s reasons ([41]–[43]).
The first central point was the legal effect of the substituted service order. UCPR r 116 allows a court to substitute another method of service when personal service is impracticable. It also allows an order to state which steps are to be taken and when service is deemed to have occurred ([10]). The relevant order dispensed with personal service and specified postal service to Coleman’s address, with deemed service four business days after compliance ([12]).
The Court found the Bank had complied with that order. An affidavit of service by a paralegal was in the appeal record and verified that the ordered steps had been taken ([16]–[17]). The Court therefore rejected the complaint that the evidentiary basis for service was uncertain. Coleman’s assertion that he had not been personally served did not answer the point: service had occurred by the court-authorised alternative method ([17]–[18]).
The Court also relied on Coleman’s actual receipt of the documents. It examined the returned envelope and the evidence that the Bank’s solicitors received back the documents that had been sent. From those circumstances, including the envelope’s “3/8/2024 received” notation, Bond JA inferred that Coleman had received the documents on that date ([19]). The Court characterised his decision to return them without responding as unjustified. It also found that, whether time ran from deemed service or actual receipt, Coleman did not file a pleading within the required period ([20]).
The second point concerned the nature of the relief Coleman sought. He asked for a stay of enforcement but did not apply to set aside the default judgment under UCPR r 290 ([22], [34]). The primary judge explained that if Coleman wanted the judgment set aside, he needed to make an application for that relief and file evidence showing a good arguable defence ([28], [30]). The Court considered that Coleman had time and an opportunity to prepare supporting material after Judge Clare granted the interim stay and ordered that documents be provided ([24]–[25], [39]).
The Court concluded that Coleman had not shown why enforcement should remain stayed. His affidavits did not disclose an arguable defence to the Bank’s claim, and he did not demonstrate a procedural defect that would support his appeal ([28], [38]–[39]). The judgment does not decide the underlying loan dispute after a trial; it addresses the appeal from the refusal to continue a stay of enforcement.
The third point was procedural fairness. The Court did not treat the right to be heard as an unlimited entitlement to continue speaking regardless of conduct. It found that Judge Barlow had read Coleman’s affidavits, understood the application, explained the relevant procedural steps and heard Coleman’s complaints. The transcript showed that Coleman talked over the judge, did not listen to repeated explanations, and made personal accusations ([28]–[33]). In those circumstances, Bond JA held that the judge made no appealable error by ending the submissions and deciding the application ([40]).
The judgment applies the text of UCPR r 116 to a particular service dispute. The rule, as reproduced in the reasons, permits a court to order substituted service if personal service is impracticable and allows the court to specify the alternative method and when service is deemed to occur ([10]). The Court’s application illustrates that a defendant’s lack of personal service does not, by itself, establish a defect where a substituted service order was made and complied with ([17]–[18]).
The Court also explains the procedural distinction between seeking a stay of enforcement and applying to set aside a default judgment. Coleman had sought the former but not the latter. The primary judge explained the steps he considered necessary for a set-aside application, including affidavit material showing a good arguable defence ([22], [28], [34]). The Court’s decision rests on Coleman’s failure to establish a basis for the stay he sought, not on a final determination of the merits of the Bank’s debt claim ([39]).
The judgment does not identify a change in the law or describe a prior rule that it overrules. Nor does it cite earlier cases or state that it is creating a new test. Its principal legal source is UCPR r 116, with r 290 mentioned as the rule permitting an application to set aside the default judgment ([10], [22]). Accordingly, the decision is best read as an application of procedural rules and established principles about an opportunity to be heard, rather than as an announced change in doctrine.
On procedural fairness, the decision provides a fact-specific explanation of the limits of an opportunity to make oral submissions. The Court’s conclusion was tied to the transcript: the judge had considered the material, explained the relevant procedure, and curtailed further submissions after conduct that prevented a productive hearing ([28]–[33], [40]). The judgment does not say that a judge may end submissions whenever they are lengthy or difficult. Its reasoning depends on the particular record before the Court.
At [10], the judgment sets out UCPR r 116. It permits substituted service where personal service is impracticable and allows the court to prescribe how service is to occur. In plain English, the rule lets a court approve an alternative way of bringing documents to a person’s attention where ordinary personal service is impracticable.
At [15], Bond JA explains that an application under r 116 is made ex parte. In plain English, the person who is to be served is not ordinarily heard before the substituted service order is made. The Court added that the person could complain that the order was made erroneously or on inadequate material, but Coleman did not advance that case on appeal.
At [17], the Court states that the Bank complied with Judge Jarro’s order and that service was therefore taken to have occurred four business days after the ordered steps. In practical terms, the Court treated compliance with the order, not personal delivery, as the basis for service in this proceeding.
At [38], Bond JA says Coleman “identifies no procedural irregularities”. The Court’s point was that the asserted lack of personal service did not reveal an irregularity once the substituted service order and compliance with it were established. The Court also relied on the evidence that Coleman had actually received the documents ([38]).
At [39], the Court notes that Coleman had an interim stay, received the relevant documents again, and had about two weeks before the final hearing, but still did not prepare material suggesting he was entitled to the relief he sought. In plain English, the Court considered that he had a further practical opportunity to support his application, but had not used it to provide evidence of a defence.
At [40], Bond JA states: “The right to be heard does not extend to the right to behave in the way which the transcript reveals the second defendant as having behaved.” The Court’s plain-English point is that procedural fairness requires a meaningful opportunity to present one’s case, but does not guarantee an unrestricted right to continue submissions after the judge has heard enough in the circumstances described.
The decision is most relevant where a defendant challenges a default judgment on the basis that they were not personally served, but the plaintiff obtained a substituted service order and can show compliance with it. The judgment stresses the importance of the exact terms of the order, proof of the steps taken to comply, and any evidence that the documents were actually received ([12], [16]–[19]).
It is also relevant where a defendant seeks to stay enforcement but has not applied to set aside the default judgment and has not filed evidence indicating a defence. The Court considered the procedural history, including the opportunity to submit material after an interim stay, when assessing whether the appellant had established a reason to continue the stay ([22], [24], [28], [39]).
A further relevant pattern is a complaint that the hearing was unfair because a judge stopped oral submissions. The decision shows that the issue is assessed in context, including whether the judge had considered the filed material, explained the procedural position, and whether the party’s conduct prevented orderly submissions ([28]–[33], [40]). The judgment does not make the mere act of muting a party sufficient to establish or defeat a procedural fairness claim; the Court assessed the whole hearing record.
The decision should not be read as determining the underlying merits of the Bank’s allegations against Coleman. The appeal concerned the refusal to maintain a stay and the fairness of the hearing on that application, not a trial of the loan and mortgage claims ([3]–[6], [39]).
The judgment itself contains no discussion of later cases or subsequent judicial treatment. It does not identify any authorities that applied, distinguished, followed or criticised its reasoning. The precedent-relationship field is therefore empty on the material provided.
The decision is dated 10 April 2026. The supplied judgment text records the reasons and orders as at that date, but provides no information about later decisions. It would not be sound to infer from this judgment alone how subsequent courts have treated it.
For research purposes, the propositions that can be attributed to this Court are limited to the reasoning it actually gives: the operation of the specific substituted service order; the absence of a demonstrated defence or reason to continue the stay; and the conclusion that the primary judge did not make an appealable error by curtailing submissions in the circumstances shown by the transcript ([17]–[18], [39]–[40]).
The judgment does not decide whether Judge Jarro’s substituted service order would have been set aside if Coleman had challenged it directly. Bond JA notes that a person could complain that such an order was made erroneously or on inadequate material, but says that was not Coleman’s case ([15]). The Court’s reasoning therefore concerns compliance with the order, not a determination that every aspect of the order-making process was correct.
The judgment also does not determine the underlying amount owing, the validity of the loan agreements or mortgages, or any defence Coleman might have raised in properly constituted proceedings. It records the Bank’s pleaded allegations and the default judgments, but the appeal was not a trial of those claims ([7], [21], [39]).
The Court’s account of the envelope and its markings supported an inference about actual receipt, but the reasons do not set out a general rule for resolving all disputes about postal service or unsealed envelopes. The finding was based on the particular affidavits and returned envelope in the appeal record ([16], [19]).
Finally, the judgment does not define a comprehensive test for when a judge may end a party’s oral submissions or mute a participant appearing by audio-visual link. It explains why there was no appealable error on this record: the judge had read the relevant material, explained the procedure, and the appellant’s conduct included talking over the judge and making unfounded personal accusations ([28]–[33], [40]). The extent to which different conduct or a different hearing record would affect that analysis remains unaddressed in this judgment.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Coleman v Commonwealth Bank of Australia [2026] QCA 61
PARTIES: SCOTT WILLIAM COLEMAN / (appellant) / v / COMMONWEALTH BANK OF AUSTRALIA / ABN 48 123 123 124 / (respondent)
FILE NO/S: Appeal No 14830 of 2024 / DC No 3364 of 2023
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: District Court at Brisbane – Unreported, 25 October 2024 (Barlow KC DCJ)
DELIVERED ON: 10 April 2026
DELIVERED AT: Brisbane
HEARING DATE: 20 March 2026
JUDGES: Bond JA, Doyle JA, Crowley J
ORDERS: Appeal dismissed. The appellant must pay the respondent’s costs of the appeal.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – JUDGMENT IN DEFAULT OF PLEADINGS OR PARTICULARS – where the defendant was served in compliance with a substituted service order and the plaintiff obtained judgment in default of pleading – where the defendant then sought to stay the judgment and any enforcement thereof – where the defendant identified no procedural irregularities – where the defendant failed to file and serve any material suggesting he had an arguable defence to the plaintiff’s claim – where the application for stay was correctly dismissed / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL FAIRNESS – HEARING – NATURE OF HEARING – OPPORTUNITY TO PRESENT CASE – where the defendant appeared before the primary judge by audio-visual link – where the defendant applied to stay the judgment entered against him in default of pleading – where the defendant identified no procedural irregularities – where the defendant refused to listen to the primary judge’s advice that he would need to apply to set aside the default judgment and would need to file and serve material suggesting he had an arguable defence to the respondent’s claim – where the defendant’s oral submissions descended into legal nonsense and unfounded personal abuse of the primary judge – where the primary judge announced he had heard enough, muted the defendant’s oral submissions and proceeded to decide the application against the defendant – where the primary judge made no appealable error by curtailing continued oral submission by the defendant and by proceeding to decide the application against him / Uniform Civil Procedure Rules 1999 (Qld), r 116
COUNSEL: The appellant appeared on his own behalf / D J Ananian-Cooper for the respondent
SOLICITORS: The appellant appeared on his own behalf / Gadens Lawyers for the respondent
BOND JA: The respondent (as plaintiff) commenced a proceeding in the District Court against a Ms Molluso (as first defendant) and the appellant (as second defendant). It is convenient to continue to refer to each of them by reference to the role they occupied in that proceeding.
The plaintiff obtained separate default judgments, initially against the first defendant and – after obtaining an order for substituted service – later against the second defendant.
The second defendant brought an application to stay any enforcement of the default judgment obtained against him. He represented himself. He obtained an interim stay before Judge Clare SC and his application for a final stay came on for hearing before Judge Barlow KC. Judge Barlow lifted the interim stay and dismissed the application with costs.
The second defendant appeals to this Court from the orders made by Judge Barlow. Again, he represents himself. He complains that he was never personally served with the plaintiff’s proceeding against him. He suggests that there have been various procedural irregularities which have consequently denied him of any meaningful opportunity to be heard.
The result, he contends, is that all orders made by the District Court ought to be discharged and the proceeding should be referred back to the District Court for trial.
For reasons which follow, the appeal should be dismissed, with costs.
The plaintiff’s proceeding was commenced on 17 November 2023 by filing a claim and statement of claim. Amongst other things, the plaintiff alleged:The first and second defendants were the registered owners of and were in possession of certain properties at Currumbin Waters and Dalby in Queensland.The plaintiff had lent the first and second defendants monies pursuant to two loan agreements, both of which were secured by a mortgage they gave over those properties.In the event of default in repayment, the plaintiff was entitled to require the total amount secured by the mortgage to become due and payable. It was also entitled to enter into possession of the properties and to sell them and to apply the monies so obtained in reduction of the amounts due and payable.Despite demand the first and second defendants had failed to pay instalments when due under the two loan agreements.Despite notice of default the first and second defendants had failed to comply with the demand, remained in default and remained in possession of the properties.The plaintiff was entitled to recovery of the possession of the properties, to the sum of $131,670.96 plus interest under the first loan agreement and the mortgage, and to the sum of $131,874.85 plus interest under the second loan agreement and mortgage.
On 20 March 2024 the plaintiff obtained judgment against the first defendant in default of the first defendant filing a notice of intention to defend. The judgment was that the first defendant was obliged to pay the plaintiff $274,581.10 inclusive of interest to the date of judgment and $4,708.65 for costs and authorised recovery of possession of the properties subject to the proceeding. An enforcement warrant was issued against the first defendant on 19 April 2024.
“116 Substituted service
If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.
The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.
The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.”
By application filed 5 July 2024 the plaintiff applied pursuant to r 116 for a substituted service order in relation to service on the second defendant. The evidence on which the plaintiff relied was set out in the affidavit of Mr Moir filed on behalf of the plaintiff who asserted on various bases that it was impracticable to effect personal service on the second defendant.
On 10 July 2024 Judge Jarro ordered that:personal service on the second defendant of the claim filed 17 November 2023 be dispensed with;the claim and his Honour’s order be served on the second defendant by sending a copy by post to the second defendant at 2 Bradshaw Drive (also known as 2 Bradshaw Road), Currumbin Waters QLD 4223;service would be deemed to be effected 4 business days after the plaintiff served the second defendant in accordance with the order;the second defendant pay the plaintiff’s costs of and incidental to this application on the standard basis.
The second defendant complained to this Court that the plaintiff must have obtained the order from Judge Jarro on an ex parte basis. Further, his written submissions before this Court stated:
“6.On 10 July 2024, Jarro DCJ made orders dispensing with personal service on the appellant and permitting substituted service by post to the Currumbin Waters address.
7.The respondent’s solicitors subsequently issued correspondence dated 26 July 2024 asserting that documents had been sent pursuant to that order.
8.The envelope containing those documents was received at the local post office in an unsealed condition.
9.The appellant returned the envelope and requested that a properly sealed copy be provided. Photographs were taken at the post office at that time.
10.No further sealed copy was provided to the appellant.
11.The appellant is not aware of any affidavit verifying that the documents were posted in accordance with the substituted service order.
12.During later proceedings on 4 October 2024, it was stated in court that an affidavit of service existed.
13.However no affidavit of service has ever been produced or provided to the appellant.
14.The appellant therefore submits that the evidentiary basis for service remains uncertain.”
As to those submissions, five points may be made.
First, it is of the nature of an application for an order pursuant to r 116 that it must be made ex parte. A person in the position of the second defendant cannot complain about that. A person in the position of the second defendant could complain that the order was made erroneously or on inadequate material, but that is not the second defendant’s case here.
Second, the affidavit of service of Ms Nguyen, a paralegal in the employ of the plaintiff’s solicitors, is contained in the appeal record and verifies that on behalf of the plaintiff Ms Nguyen took the steps required by the order of Judge Jarro.
Third, it follows that the evidentiary basis for service of Judge Jarro’s order and of the plaintiff’s claim and statement of claim is not at all uncertain, as the second defendant wrongly contends. The plaintiff complied with Judge Jarro’s order with the result that the plaintiff’s claim and statement of claim must be taken to have been served on the second defendant four business days after 26 July 2024.
Fourth, the second defendant’s complaint that he has never been personally served with the plaintiff’s claim and statement of claim may be true, but that is of no relevance because he has been served in a different way, as is contemplated by UCPR r 116.
Finally, in any event, and importantly, he in fact received the documents and probably did so on 3 August 2024. As to this:By his written submissions in this Court quoted above, the second defendant admitted that he in fact received the documents but decided that he was justified to ignore what he received and to return the envelope and contents to the sender.He told the Court that by “unsealed condition” he meant that the envelope was already unsealed when he received it. He apparently formed the view that in those circumstances he could not be expected to respond to the contents of the envelope.But it is clear that, though unsealed, the envelope must have contained everything it was supposed to contain. That is obvious, first, because Ms Nguyen’s first affidavit deposed to having sent sealed copies of the order of Judge Jarro and of the claim and statement of claim and, second, because Ms Nguyen’s second affidavit deposed to having received back all of those documents when the plaintiff’s solicitors received the returned envelope and its contents on 13 August 2024.The second defendant’s view that he could not be expected to respond to the contents of the documents which were in the envelope he received was an unreasonable and high-handed view. He was not justified to ignore what he had received and to return it to sender.Moreover, Ms Nguyen’s second affidavit exhibits the envelope which the second defendant returned to the plaintiff’s solicitors. It had been marked in handwriting:“Unclaimed”;“No consent no contract”;“Return to sender for cause without dishonour”; and“3/8/2024 received”.Given that (1) the documents were sent by post on 26 July 2024; (2) the documents were received at the post office by the second defendant; and (3) it was the second defendant who decided to return (and did return) the envelope and its contents to the sender, I am prepared to infer that it must have been the second defendant who marked up the envelope and, accordingly, he must have received the envelope and its contents on 3 August 2024.
“Your Honour, tread lightly. You claim you’re a KC. I expect you to be in accordance with the 1901 Constitutional Act UK and if you are not, then you are committing Crimes Act 1914 subsection 43. You are perverting justice.
… Fabricating evidence and by calling me Mr Coleman, your Honour, you are committing personage, and that is followed by barratry.”
The second defendant insisted that the plaintiff needed to prove to him that he owed money to it. His Honour repeated that it was the second defendant’s obligation to put in a defence to the claim; that he kept telling the second defendant that; and that the second defendant had neither done so nor indicated that he had any defence to the claim. The second defendant then told his Honour that he needed to stop practising law from the bench and needed to “sit there and be an honour” and if he could not do that he should dismiss himself and “get somebody that is an honour”.
Ultimately Judge Barlow said that he had heard enough, ordered the second defendant to be muted; found that the second defendant had not demonstrated any grounds of defence to the claim and that therefore the stay which had been ordered by Judge Clare would be lifted and the application of the second defendant would be dismissed.
Before this Court the second defendant has filed a notice of appeal from the orders made by Judge Barlow. There is no appeal from the substituted service order of Judge Jarro. Nor has there been an application along the lines of that which Judge Barlow correctly advised the second defendant he should pursue. Nor, it must be said, has there been any attempt by the second defendant even at this late juncture to demonstrate that he has any arguable defence on the merits to the plaintiff’s claim.
The grounds of appeal set out in the notice of appeal were:that the learned presiding judge erred in law;that the learned presiding judge erred in the application of the appropriate law/s;that the learned presiding judge erred in the application of facts to the appropriate applicable law;that the learned presiding judge’s orders had the effect of being final orders;that the learned presiding judge failed to provide the appellant natural justice;that the learned presiding judge failed to afford the appellant judicial fairness;that the learned presiding judge failed to follow the proper appropriate practice and procedures of the court;that the learned presiding judge excluded the appellant to part of the proceedings;that the learned presiding judge acting in a manner to invoke him acting as a ‘persona designata’; andthat the appellant reserves the right to amend this notice of appeal before the matter is set down for the hearing of the appeal.
It need hardly be observed that the manner of expression of the grounds of appeal fails to comply with the requirements for detail as set out in the UCPR.
The second defendant filed an outline of argument before this Court. The only grounds which he attempted to make good were those mentioned in (e) to (h) above. His argument was encapsulated in the introductory paragraphs of his outline in these terms.
"1.This appeal concerns procedural irregularities in the proceedings below which resulted in enforcement and repossession orders being made without the appellant having a meaningful opportunity to be heard.
2.The appellant submits that the proceedings were affected by defects in service, uncertainty concerning the evidentiary basis for service, and subsequent orders made ex parte without the appellant’s knowledge.
3.In those circumstances the appellant submits that the proceedings involved a denial of procedural fairness.”
The second defendant’s argument must be rejected. He identifies no procedural irregularities. He repeatedly relies on the lack of personal service, but that complaint is misconceived. Judgment appears to have been regularly entered based on service having been effected in accordance with Judge Jarro’s substituted service order. This is a course permitted by the UCPR. And quite apart from that, the second defendant actually received the documents. His conduct in returning them to sender without acting on them was unjustified. His failure to file a pleading within time appears to be due to his own unreasonable conduct.
Nevertheless, the second defendant succeeded in obtaining an interim stay before Judge Clare. It was then for the second defendant to persuade Judge Barlow that there was some reason to stay enforcement. He received the relevant documents again. He then had about two weeks before the final hearing of his application. Again he failed to prepare any material which suggested he was entitled to the remedy he sought, let alone the remedy which he should have sought. Judge Barlow was correct in his assessment that the two affidavits upon which the second defendant sought to rely before him did not suggest that he had any defence to the plaintiff’s claim. His Honour correctly told the second defendant what he should do, but the second defendant refused to listen and descended into oral submissions which constituted legal nonsense and unfounded personal abuse.
The second defendant had an adequate opportunity to be heard before Judge Barlow. The right to be heard does not extend to the right to behave in the way which the transcript reveals the second defendant as having behaved. Judge Barlow made no appealable error by curtailing continued oral submission by the second defendant and by proceeding to decide the application against the second defendant.
I would order that the appeal be dismissed, with costs.
DOYLE JA: I have read and agree with the reasons for judgment of Bond JA and with the orders proposed by his Honour.
CROWLEY J: For the reasons given by Bond JA, I agree the appeal should be dismissed, with costs.
Coleman
Commonwealth Bank of Australia [2026] QCA 61
Appeal dismissed. The appellant must pay the respondent’s costs of the appeal ([41]–[43]).
The first defendant has not sought to set aside the judgment against her or to apply to have enforcement stayed. Nor has she participated in the second defendant’s application below or in his appeal in this Court.
Part 2 of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) required the plaintiff to effect personal service of its claim on the second defendant. Importantly, however, UCPR part 5 also permitted service to be effected by other means. UCPR r 116 is relevant here:
The second defendant was required to plead to the claim and statement of claim within 28 days of service on him. He did not do so within time, when one considers time running as provided for in the substituted service order. Nor did he do so within time, even if time was regarded to run from the time he actual received the documents.
On 11 September 2024 the plaintiff obtained judgment against the second defendant in default of his filing a notice of intention to defend. The terms of the judgment required the second defendant to pay the plaintiff the amount of $283,339.72 inclusive of interest to the date of judgment together with $4,544.20 for costs and authorised the plaintiff to recover possession against the second defendant of the two properties. The affidavit of Ms Sim filed on behalf of the plaintiff reveals that on 13 September 2024, the plaintiff by its solicitors posted the default judgment to the second defendant at the address mentioned in Judge Jarro’s order.
UCPR r 290 permitted the second defendant to apply to set aside the default judgment, but no such application was made. Instead, by application filed on 25 September 2024 which relied on an affidavit affirmed by him on 18 September 2024, the second defendant applied to the District Court for orders:to stay the operation of all and any orders made by the District Court;that the stay is and remains operative until further order of the District Court.
His application also sought to challenge the jurisdiction of the District Court to deal with his “Equitable Rights” and suggested that the proceeding concerned the subject of division of assets and estate and was only the dominion of a federal court and not any state court.
The second defendant’s application came on before Judge Clare SC on Friday 4 October 2024. The second defendant appeared by audio-visual link. He succeeded in obtaining an interim stay and in obtaining further documents from the plaintiff. Relevantly to the present appeal, Judge Clare SC ordered:that enforcement of the default judgment against the second defendant be stayed until 26 October 2024 unless otherwise ordered;the plaintiff is to produce to the second defendant the documents referred to in the statement of claim together with a further copy of the claim and statement of claim and the substituted service order of Judge Jarro;the plaintiff to do so by no later than 9 October 2024 by posting a copy of those documents to the second defendant at his address for service mentioned in Judge Jarro’s order;the second defendant have leave to file and serve an amended application and any supplementary material in support of the amended application by 23 October 2024; andthe second defendant’s application be listed for hearing on 25 October 2024.
The third affidavit of service of Ms Nguyen reveals that the plaintiff complied with Judge Clare’s order to produce documents to the second defendant on 8 October 2024. Notably, however, in addition to posting the documents to the second defendant Ms Nguyen emailed the documents to the second defendant. There is no suggestion that the documents were not received by either or both of those means.
The hearing on 25 October 2024 was before Judge Barlow KC.
The plaintiff provided written submissions to his Honour and read, amongst other material, the orders of Judge Jarro and Judge Clare; the default judgment; and the affidavits on behalf of the plaintiff to which reference has been made above. The plaintiff also read the second defendant’s application and the affidavit he had filed in support. The second defendant appeared by audio-visual link and relied on a second affidavit affirmed by him on 23 October 2024 and which had been provided by email. It seems he also sought to rely on things which he had written in an email.
The transcript of argument before Judge Barlow reveals:His Honour had read the two affidavits of the second defendant to which I have referred.His Honour was aware of the substituted service order and the default judgments and that the second defendant was seeking to stay enforcement of the default judgment.His Honour advised the second defendant that he could not rely on emailed material which was not an affidavit.His Honour advised the second defendant that as he was served with a claim and statement of claim and in order to have a right to defend the claim and statement of claim he was required to file and serve a notice of intention to defend together with a defence. He had not done so and default judgment was granted against him. The judgment remained in place.His Honour advised the second defendant that if he wanted to set aside the judgment that had been given it was incumbent upon him to make an application to set aside the judgment and to file an affidavit that showed a good arguable defence to the statement of claim. The primary judge noted that the second defendant had not done that.His Honour formed the view that the two affidavits that the second defendant had relied on did not show a good arguable defence.
For his part the second defendant denied that he had ever been personally served and proceeded to accuse the representatives of the plaintiff of having committed perjury. (I interpolate that the same accusation was advanced in oral submissions before this Court. There was no evidentiary foundation for the accusation placed before either Judge Barlow or this Court.) The second defendant complained that he had not seen any material evidence that the first defendant or he owed any alleged amount of money to the plaintiff.
It is apparent from the transcript that the second defendant was talking over Judge Barlow and was not listening to the advice that his Honour had given him. The judge repeated his advice that if the second defendant wished to have service set aside and the default judgment set aside on the basis that he was not properly served he could apply to do so but he would then need to prove on affidavit that he had a good defence to the claim. His Honour said that because there was a default judgment based upon failure to put in a defence after having been served in accordance with an order of the Court that is what he would have to do.
The transcript revealed that the second defendant then started telling Judge Barlow that he did not have the second defendant’s consent to make a decision. When told by his Honour (correctly) that he did not need the second defendant’s consent to do anything, the second defendant said: