G & Y Barr Nominees Pty Ltd v Gulf Transport Co Pty Ltd

[2010] QDC 441

DISTRICT COURT OF QUEENSLAND

CITATION:

G & Y Barr Nominees Pty Ltd v Gulf Transport Co Pty Ltd & others [2010] QDC 441

PARTIES:

G & Y BARR NOMINEES PTY LTD
(Plaintiff)

AND

GULF TRANSPORT CO PTY LTD

(1^st Defendant)

RALP KUHL WIND AND NATALIE MORETON TRADING AS HUMPTY DOO DIESEL SERVICE

(2^nd Defendant)

FILE NO/S:

BD2360/06

DIVISION:

Civil

PROCEEDING:

Application on the papers

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2010

JUDGE:

Reid DCJ

ORDER:

1)   Give leave for the Applicant to withdraw as solicitors on the record for the First Defendant.

2)   Order that the First Defendant pay the Plaintiff’s costs of an incidental to the application fixed at $729.35.

SOLICITORS:

Gadens Lawyers for the Applicant

1. I have before me an application, pursuant to r 991 of the Uniform Civil Procedure Rules (“UCPR”), for Gadens Lawyers to be given leave to withdraw as solicitors on the record for the first defendant, Gulf Transport Co Pty Ltd.

1. The application is one made pursuant to the provisions of r 490 of UCPR, that is, the applicant proposed that the application be decided without an oral hearing.

1. The affidavit of Erin Lee Martin, of the first Defendant’s solicitor’s firm, sworn 3 November 2010 discloses that on or about 28 October 2010 the following documents were served upon the first Defendant by sending them to its registered office in the Northern Territory:

1.          Notice pursuant to the Service and Execution of Process Act;

2.          Proposed Application without Oral Hearing;

3.          Affidavit of Erin Lee Martin (sworn 26 October 2010);

4.          Written submission; and

5.          Draft Order.

1. The First Defendant has not, pursuant to r 492 of the UCPR, elected to present a written submission or evidence other than oral evidence. It was required to file and serve on the applicant a response with all relevant accompanying material at least three business days before the date set for deciding the application namely 11 November 2010 if it wished to do so. Furthermore, if it required an oral hearing it was required pursuant to r 494 of UCPR to file a notice in the approved form and serve a copy of the notice on the applicant within three business days after being served with the application. It has done so.

1. In circumstances where the First Defendant has not exercised its rights under rr 492 or 494 I have proceeded to hear the application on the basis of the material filed by the plaintiff’s solicitors and served on the First Defendant.

1. The affidavit of Erin Lee Martin sworn 26 October 2010 discloses that a notice of intention to apply for leave to withdraw was sent to the first defendant on 27 April 2010. On 5 May 2010 Ms Martin spoke on the phone with Jackson Annear who said he was from the first defendant’s company. Mr Annear informed Ms Martin the first Defendant would act on its own behalf in the matter.

1. On or about 11 May 2010 Ms Martin then emailed to the first defendant a draft “Notice That Party Acting in Person” for completion and service by the first defendant, together with instructions on filing and serving the notice.

1. Again on or about 10 June 2010, Ms Martin sent an email and a letter by post to the First Defendant requesting it appoint another solicitor or that it file the notice that it were to act in person.

1. On 6 October, Ms Martin sent another email and letter informing the First Defendant that the solicitors from the second defendant were seeking to have the matter set down for trail. She wrote in that letter that unless the firm was served with a notice of change of solicitor or notice that the party was acting in person by 10am 11 October 2010 that Ms Martin’s firm would apply for leave to withdraw as solicitors on the record. This constituted a notice of intention to apply for leave to withdraw pursuant to r 990(1) of the UCPR.

1. The affidavit of Ms Martin sworn 3 November 2010 indicates that the last email or letter that was sent to the First Defendant was on 28 October 2010, as referenced in [3] hereof, informing them the application had been made and they applied for leave to withdraw on 27 October 2010. There doesn’t seem to have been any contact made by the First Defendant with it’s solicitors since Mr Annear’s phone call on 5 May 2010.

1. For leave to be granted, the applicant solicitor must follow the steps outlined in r 990 of the UCPR as follows:

“(1) Unless the court orders otherwise, a solicitor may apply for leave to withdraw from the record in a proceeding only if, at least 7 days before applying for leave, the solicitor gives written notice (notice of intention to apply for leave to withdraw) to the client—

(a)       stating the solicitor’s intention to withdraw; and

(b) asking the client, within 7 days after the date of the notice, to—

(i)       appoint another solicitor; or

(ii) file and serve a notice under rule 986(2) that the client acts in person; and

(c) stating that, if the client does not comply with the requirements of the notice—

(i) the solicitor may apply to the court for leave to withdraw; and

(ii) the client may be ordered to pay the solicitor’s costs of the application.

(2) The application for leave to withdraw must be served on the client.

(3) A solicitor may give notice of intention to apply for leave to withdraw, or serve an application for leave to withdraw, by posting it to the client at the residential or business address of the client last known to the solicitor.”

1. Pursuant to r 990(1)(b), the Applicant gave written notice to withdraw as solicitors on 6 October and waited 21 days before applying for leave to withdraw on 27 October. This is more than the 7 days required under this sub-section.

1. This written notice correctly informed the First Defendant to appoint another solicitor or file and serve a notice under r 986(2) that they act in person. The application also informed the First Defendant they would apply for leave to withdraw and the First Defendant may be ordered to pay costs for this application (see exhibit ELM 1 of affidavit sworn 26 October 2010).

1. Subsequently, the First Defendant has not complied with the requirements under r 991 of the UCPR, as they have not complied with the requirements set out in the notice of intention to apply for leave to withdraw.

1. Accordingly I give leave for the applicant to withdraw as solicitors on the record for the First Defendant.

1. With respect to costs, the applicant submits costs be award against the First Defendant, fixed at the sum of $729.35. Under r 991(2) of the UCPR, an applicant solicitor may make an application for costs if the solicitor’s client does not comply with the requirements of the notice of intention to apply for leave to withdraw, as was the case here.

1. Exhibit ELM-5 of Ms Martin’s affidavit sworn 26 October 2010 provides a schedule of costs and upon briefly examining it, I see no entries that raise any obvious question. In that circumstance, I order that the First Defendant pay the Plaintiff’s costs of an incidental to the application fixed at $729.35.