Box Information Technology Pty Ltd and Crystalaid Manufacture Pty Ltd

[2013] QDC 23

[2013] QDC 23

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3066 of 2011

BOX INFORMATION TECHNOLOGY PTY LTD (ACN 097 484 270)	Plaintiff
and
CRYSTALAID MANUFACTURE PTY LTD (ACN 009 943 400)	Defendant

and

SAP AUSTRALIA PTY LTD                 Third Party
(ACN 003 682 504)

BRISBANE

..DATE 01/02/2013

ORDER

CATCHWORDS

Commercial list proceeding settled - Parties’ intention to produce and file a combined notice of discontinuance signed by all of them not achieved - Order made dismissing claim, counterclaim and third party proceedings on basis defendant (not present at hearing) might apply for changes.

HIS HONOUR:  This matter on the commercial list came before the court in November when trial dates were vacated on the court being advised that a compromise had been reached satisfactory to the plaintiff, defendant and third party.  A mention was fixed for today to assist the court to have the matter formally finalised and also allow its assistance to be sought should anything anticipated to occur under the compromise not happen.

The mention today under the direction given would have been obviated if a notice of discontinuance had been filed.  That has not occurred in circumstances where the parties were working towards preparing a single document which would discontinue the plaintiff's claim against the defendant, the defendant's counterclaim against it and the third party proceedings.  The executed document left the plaintiff's area but has not emerged from the defendant's.  It is unclear why that's so.  Mr Hutchinson suggests it may be related to some confusion attributable to a practitioner's relocating.

The notice of discontinuance therefore hasn't reached the third party, represented by Mr McKechnie this morning.  The court is assured by him and Mr Hutchinson that everything the parties needed to do, except in relation to the notice of discontinuance, has happened, any moneys to be paid have been paid and the like.

The efficient thing to do is to make orders dismissing the plaintiff's claim against the defendant and the defendant's counterclaim against the plaintiff.  There should also be an order dismissing the third party proceedings.  There's a hypothetical possibility that that affects the defendant, which hasn't appeared this morning when called, inappropriately.  Given the defendant wasn't here, there'll be the opportunity for it to approach the court to have orders made in its absence set aside or changed.  I'm not anticipating that will happen, which means that the court can close its file on the matter and repeat its congratulations to the parties for resolving it by agreement.

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