Davis v Dippenaar

[2011] QDC 243

DISTRICT COURT OF QUEENSLAND

CITATION:

Davis & Anor v Dippenaar & Anor [2011] QDC 243

PARTIES:

DUNCAN KENNETH DAVIS & ANOR
(Plaintiffs)

AND

J.J.H. DIPPENAAR & ANOR
(Defendant)

FILE NO/S:

BD 1000 of 2010

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

6 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2011

JUDGE:

McGill DCJ

ORDER:

Application adjourned.

CATCHWORDS:

PRACTICE – Service – ordinary service – identification of  relevant address – solicitor given leave to withdraw but not having filed notice of ceasing to act – not served in accordance with judge’s direction.

UCPR r 112, r 991.

COUNSEL:

N Evans (solicitor) for plaintiff.

No appearance for defendant.

SOLICITORS:

1. This is an application to strike out a defendant’s defence and give judgment for the amount claimed on the basis that the defendant has failed to comply with an order made by another judge on 15 February 2011.

1. On that date, that judge ordered that the defendant provide disclosure in accordance with the requirements of the rules within 21 days.  The defendant has not provided a list of documents in accordance with the requirements of the rules but what happened since then was that the solicitors for the defendant applied on 23 March 2011 for leave to withdraw.

1. That application came before another judge on 1 April 2011.  That judge gave the solicitors leave to withdraw and ordered the defendant pay their costs of the application and went on:

“Until another address for service is filed and advice of it is served on the plaintiffs, they may serve documents on him at (or by posting to where appropriate) 69/76 Bayview Street, Runaway Bay, Queensland, 4216, with a copy of such documents to be posted to Wheldon & Associates.”

1. I should say the order has not been drawn up but I am reading from the associate’s endorsement of the order.  However, the solicitors of the defendant or the former solicitors for the defendant communicated the substance of that direction to the solicitors for the plaintiff in a facsimile dated 5 April 2011.

1. The only inaccuracy in that letter was that the solicitor said that the other judge determined that the address for service of the defendant was the address at Bayview Street, Runaway Bay, but the other judge did not order that that be the address for service, but rather that documents may be served at or by posting to that address with a copy of such documents to be posted to Wheldon & Associates.

1. The effect of that order is that it permitted service to be effective in a certain way.  Apart from that, the present application could have been served under r 112, which permits service inter alia by ordinary post to the relevant address.

1. The relevant address for the purposes of that rule is the address for service, where there is one, or if a party does not have an address for service, the last known residential or business address of the party.

1. Rule 991 deals with a situation where a solicitor wishes to withdraw from the record without the cooperation of the client.  The Court may give leave to withdraw but the solicitor who withdraws pursuant to that leave must file a notice of withdrawal of solicitor.

1. Sub-rule (4) provides: “A solicitor’s withdrawal does not take effect until the notice of withdrawal of solicitor is filed.”  In the present case, although Wheldon & Associates obtained leave to withdraw, they have never filed the Notice of Withdrawal of Solicitor.

1. It follows that they remain the solicitors on the record and, strictly speaking, the defendant therefore retains an address for service, being the address of Wheldon & Associates as advised in the Notice of Intention to Defend.  Service under r 112 therefore required service at that address rather than at the last known residential address of the plaintiff.

1. Accordingly, the situation appears to be that following 1 April 2011 the order or any application such as the present one could be served on the defendant either under r 112 by service at the address for service or under the order made by the judge on 1 April 2011 by service at the nominated residential address with a copy of the documents to be posted to Wheldon & Associates.

1. The difficulty, however, is the plaintiffs in this matter have not served by either of those methods.  What they did was simply post the application and supporting affidavits to the residential address at Runaway Bay.  That does not satisfy either the requirements of r 112 or the requirements of the order made on 1 April 2011.

1. It follows, therefore, that, strictly speaking, the application has not been served as required by the rules.  The defendant has not appeared in response to the application and I am therefore in a position where I really should not proceed to deal with the application in the absence of proof of proper service in accordance with the rules.

1. So, the appropriate course is to adjourn the application to enable it to be served in accordance with the rules or in accordance with the other judge’s order, and I will adjourn the application 14 days to 20 October 2011 for that purpose.