Barralet v Building Approvals Group Pty Ltd

[2009] QDC 180

[2009] QDC 180

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D53 of 2007

NEIL THOMAS BARRALET	Plaintiff
and
BUILDING APPROVALS GROUP PTY LTD ACN 871 179 130 23	Defendant

MAROOCHYDORE

..DATE 19/06/2009

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 469(4) and r 986(3) - defendant's signature on request for trial date dispensed with - costs ordered in favour of plaintiff - basis was plaintiff being kept in ignorance of filing by the defendant of a notice of party acting in person leading plaintiff to attempt to obtain confirmation from the solicitor on the record.

HIS HONOUR: The Court has made an order in terms of the initialled draft which under rule 469(4) dispenses with the defendant's signature on the request for trial date. It also orders that the plaintiff's costs of the application be assessed and be his costs in any event.

The plaintiff has been kept unaware of the defendant's having separated from its solicitors on the record and appointed its director, Mr Travis Wiffen, who appears today, as its representative. That may or may not create difficulties at the trial. Mr Barr, for the plaintiff, doesn't suggest that it should today.

His application for costs is unusual.  It's based on the failure of Mr Wiffen to serve on his firm the notice or a copy of the notice of a party acting in person which was filed on the 3rd of April 2009. Mr Wiffen tells the Court he was unaware that unless such service was effected, his former solicitor would remain on the record and be the person with whom the plaintiff's solicitors dealt.  See rule 986(3).  That is what happened; it was to them that the rule 444 letter went, and the like.

Only very lately, after the making of the application, has Mr Barr learned that the defendant is now acting in person. That has taken away from him the possibility of avoiding the making of this application by negotiations with the solicitors on the record, who, I'm told, have simply ignored communications to them.

While Mr Wiffen suggests that he's attempted to follow advice from Court staff, and maybe from his former solicitors in recent times, who he says got him to sign a second notice of acting in person (which doesn't seem to have found its way to the Court).

I can't see that the plaintiff ought to suffer from that. I understand Mr Wiffen's concern not to be forced to an early trial, he has preparations to make. As I would have expected, Mr Barr indicates that the trial will still be some three or four months away and Mr Wiffen appears to think that will be sufficient time for him to get ready to face the claim.

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