Adfinis Pty Ltd v SRW Contracting & Wilson

[2010] QDC 335

[2010] QDC 335

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2485 of 2004

ADFINIS PTY LTD

Plaintiff

and

SRW CONTRACTING

and

SCOTT WILSON

First Defendant

Second Defendant

BRISBANE

..DATE 20/08/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules, r 990, r 991

Application for leave to withdraw by defendants' solicitors - single notice addressed to both defendants at a shared address sufficed - no requirement that solicitors disclose reasons for wanting to withdraw a provision made for new address which plaintiff might use included in order - court acted on copies of the application, supporting application and affidavit of service when such documents accepted to have been filed, but were on or recored on the file available at the hearing

HIS HONOUR:  This application by the first and second
defendants’ solicitors on the record for leave to withdraw
pursuant to rule 991 has proved less straightforward than it
might have done.  The application is dated 4 August 2010 and
has been filed as established by the appearance of the court's
stamp on the sealed original which Mr Schefe produced to the
court.  It is disturbing that document had not made its
way to the file or been recorded in the file index by
yesterday when the file came to me.  Given that there is no
reason to doubt Mr Schefe's assurance that it was filed on the
4th of August and even if it came in some days later it should
have found its way to the file by now.

The affidavit of himself, which Mr Schefe tells the court
accompanied the application when it was filed, is missing,
too.  There is no court sealed copy of that document and the
court has acted on a copy provided by Mr Schefe today.

The service of the application for leave to withdraw is
established by an affidavit of Ms McGill which Mr Schefe says
was filed yesterday; unsurprisingly that's not available in
court and the court has acted on a copy.  Mr Schefe's
affidavit is important because it exhibits the letter
constituting the notice that a solicitor desirous of getting
leave to withdraw is required to give under rule 990.  It is
unusual in my experience not to have separate letters to the
two defendants.  The present letter is addressed to Scott
Wilson, SFW Contracting Pty Ltd at a post office box address
which Mr Schefe assures the court is the most reliable one
available to his firm.  On reflection it seems to me that the
intention of rule 990 is achieved by the single communication
that was sent.

Another unusual feature of this application in my personal
experience is that the court is not given any indication of a
reason why leave to withdraw is being sought.  That's commonly
supplied, although Mr Schefe says he has experience of other
like applications in which it hasn't been.  He indicates that
it is for reasons of delicacy that the firm are being coy
about the reason or reasons motivating them.  One may
speculate it has something to do with failure of the client to
give instructions or to honour or meet financial obligations.

There is some point in Mr Schefe's statement that it may
embarrass or prejudice a client to have on a court file
details of the kind I have just described.  I took him to be
hinting that there may have been some unfortunate experience
in the past.

The rules contain no indication that reasons for a solicitor's
seeking leave to withdraw ought to be disclosed to the court.

The last aspect of the application arises because of my
personal concern in every such application to ensure that
other parties are not prejudiced by the loss of an address for
service which they are accustomed to using and, in my view,
would have reasonable expectations of being able to continue
to use until the proceeding is complete.

That's why the order now has added a provision that until the filing of another address for service the plaintiff may serve documents in the proceeding on the first defendant by posting to its registered office and on the second defendant by posting to 3649 Main Beach Parade, Main Beach 4217 with copies in each case to PO Box 1037, Burleigh Heads 4220.  That double
obligation is something of an imposition on the plaintiffs but
in the long run will probably make the way easier for
them than if they were obliged to locate Mr Scott.

Orders as per initialled draft.

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