Holmes v the Proprietors of 'Allen House' Building Units

[2006] QDC 127

[2006] QDC 127

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D1273 of 1997

ESME CORRINE HOLMES

Plaintiff

and

THE PROPRIETORS OF 'ALLEN HOUSE' BUILDING UNITS PLAN NO 7653

and

KHAY SUOONG TAING, KIM TAING, AYSE UYAR AND BULENT UYAR AND ANNA LAPENNA AND NICOLE LAPENNA AND
CENTURY NO 30 PTY LTD

and

AUSTRALIAN UNIT ADMINISTRATION
PTY LTD (ACN 010 256 309)

First Defendant

Second Defendant

Third Party

BRISBANE

..DATE 28/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 389(2), r 990 - solicitors on record for defendants granted leave to withdraw when court ordered "otherwise" in face of non-compliance with all formalities - contact with defendants had been lost - last step in proceeding was over 5 years ago, when plaintiff filed a notice of discontinuance - application brought because third party, without obtaining any leave under r 389 - sought to serve the solicitors with documents to lead to a request for trial date

HIS HONOUR:  This is an unusual application by solicitors under Rule 990 for leave to withdraw as solicitors for the defendants.  Notwithstanding that at the call-over I indicated to Ms Canning my usual approach of taking appropriate steps to ensure that other parties are not deprived of the advantage of having a useable address for service if a solicitor is given leave to withdraw, the circumstances are so unusual as to make that concern less pressing.

The proceeding is an old one commenced by the plaintiff on the 2nd of April 1997.  It arises out of a fall which the plaintiff had on stairs which were common property on the 13th day of July 1996 in a complex under body corporate arrangements in which there were three owners, all of whom had restaurants operating in their premises.  Things were run so informally that there was no insurance to protect the defendants. 

The defendants include the body corporate and, perhaps because of the circumstances of lack of insurance, the individual owners, all of whom have long since departed.  Issues arose as to the responsibility of the third party which provided management services for the building.  The owner defendants, as noted, have long since departed the scene.  The third party, it seems, is no longer charged with management of the body corporate and Ms Canning has had great difficulty in ascertaining who might be in control now.

To all appearances, although the third party had purported to reserve rights against the defendants, the proceeding came to an end when the plaintiff filed a notice of discontinuance on the 5th of March 2001.  That was the last document on the Court file until Ms Canning's firm filed their application on the 12th of April this year.

What inspired that was a communication from A K Abbott and Company, solicitors, who say in it that they are the new solicitors for the third party which is plainly enlivening whatever claims it might have against the defendants.  A copy of the communication has been marked Exhibit 1.  It provided Ms Canning's firm with notice of change of solicitor, a request for trial date and a "consent order" transferring the matter to the Magistrate's Court.  That last document is not included in Exhibit 1 but I have accepted from Ms Canning her description of it, as I have her outline of the circumstances of the proceeding - for which she should not be subject to criticism on account of it not being in any affidavit.

A K Abbott and Company are taking the view that her firm are solicitors on the record and that documents can be served on her.  While ordinarily there is doubtless scope for service of documents on a solicitor on the record even after an action appears to have been completed by - entered judgment, for example, it is taking things too far, in my opinion, to apply that approach here.

In present circumstances, if there be anything in a proposition that Ms Canning's firm are still solicitors for the defendants, they present a sympathetic case for the relief sought.  Although some steps have been made towards complying with the requirements of Rule 990, those are not complete.  "Notice of intention to apply for leave to withdraw" has been given only to the first defendant on the basis that it will notify the others.  Whether or not that is correct, Rule 990 permits the Court to order "otherwise" and to the extent that it is necessary, I am willing to proceed with chapter and verse compliance at the requirements of Rule 990.

The circumstances here, for all that appears, are that the third party has no entitlement to take any step in this proceeding without an order of the Court under Rule 389(2).  That has not been obtained.  One wonders, indeed, why the simple course of simply commencing a new proceeding in the Magistrate's Court was not thought of.

In the circumstances, I make an order in terms of the draft which provides for leave to withdraw.  Ms Canning is not seeking costs.  She thinks that, given that she has lost contact with the erstwhile clients, such an order might be futile, anyway.

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