[2] The application is dismissed for the following reasons.
[3] First, very little of the evidence relied upon is admissible even allowing for the effect of Rule 430(2) UCPR. This Court has explained the construction of that rule in the context of substituted service applications in previous judgments. It will be a salutary experience for the solicitor responsible for the application to find those judgments, read and apply them.
[4] Second, even if one had regard to the inadmissible evidence, Lumi does not make out the threshold condition under rule 116.Rule 116(1) requires, in this case, that that the applicant/plaintiff establish it is impracticable personally to serve the claim and statement of claim. The deponent of the affidavit asserts his belief that Lumi has made reasonable efforts personally to serve. His belief about that is irrelevant opinion. He also cites the wrong legal test.
[5] Further, the inadmissible evidence shows that the (unnamed) process server went to the address on only three occasions; twice around lunchtime on a work day and once at 5:22pm on a work day. A person who works would be unlikely to be at home at those times. That evidence, even if put in admissible form, falls very far short of establishing that personal service is impracticable.
[6] Third, the deponent also (irrelevantly) asserts his belief that the defendant is avoiding personal service. That is a submission, not a matter which should be in an affidavit. In any event, there was very little in the inadmissible evidence to suggest that the defendant was keeping house. Based on the (doubly) inadmissible statement from the daughter[1], the defendant lives at the address. No attempt to conceal that fact appears in the material. True it is that the solicitors for the defendant do not have instructions to accept service, but a defendant has no obligation to make themselves available to be served. The fact that the three attendances at the house have been unsuccessful does not suggest evasion of service. Although evasion of service is not an offence, it can be harmful to a person's reputation and care must be exercised in making the allegation.
[7] Substituted service applications are ex parte applications made to a Court. They should be properly prepared having regard to the law of substituted service and the law of evidence on interlocutory applications. This application failed on both counts.
[8] I dismiss the application. To be clear, no order as to costs has been made, so there is no entitlement to costs of this application in the plaintiff.
[9] Finally, I want to emphasise that it is not the purpose of this judgment to embarrass. Substituted service applications are frequently done poorly, and sometimes by practitioners who should know better. Rather, it is hoped this judgment will lead to a better appreciation by those involved in this application of what is required in properly bringing such an application.
[2]
[1] The evidence was in substance that the deponent was told by the Sharman's office, who was told by the service agent, who was told by the daughter, that the defendant lived at the house. Only first hand hearsay is admissible under Rule 430(a) UCPR.