Kiva Co Pty Ltd v Alpha Platinum Private Pty Ltd

[2012] QDC 130

[2012]QDC 130

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2494 of 2011

KIVA CO PTY LTD ACN 125 988 472	Plaintiff
and
ALPHA PLATINUM PRIVATE PTY LTD ACN 125 090 660 and OTHERS	Defendants

BRISBANE

..DATE 20/04/2012

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 990

Circumstances in which court "orders otherwise", permitting defendant's lawyers to withdraw notwithstanding that their notices to their client did not comply with the ordinary requirements in paragraphs (1)(b) and (c) rule 990.
HIS HONOUR:  The court makes an order in terms of the initialled draft that grants the applicant lawyers leave to withdraw as solicitors for the first defendant and second defendant.

The addition to paragraph 1 of the order provides the words, "notwithstanding that Rule 990(1) has not been complied with".  All that has been done is to write to the principal of the defendant company, which is said to be "wearing two hats”, each referable to a particular family trust, of the intention to file a notice of withdrawal in the Court Registry within seven days.

The communications sent, which have also been made known to the receivers and managers the Bank of Queensland appointed to the company, do not make the requests referred to in Rule (1)(b) or to contain the statement in paragraph (c).

There's no application for costs by the applicant.  In the circumstances such an application could not realistically be made.  Although this is the first time in my experience of the court being in a position of having to order “otherwise” for purposes of Rule 990, it seems to me the realistic course to adopt - not only is the defendant company under the control of receivers as to part of its affairs, and probably the parts which matter, its director is apparently in prison.

There's no good reason for keeping the reluctant lawyers in the proceeding.

In an application such as the present where a defendant's legal representation disappears it's important that the plaintiff not be left bereft of a usable address for service of further material in the proceeding.  The order covers that by nominating as the address for service (unless and until other steps are taken by or on behalf of the defendant) the accounting firm from which the receivers and managers operate.

Order as per initialled draft.

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