Maltabes v O'Neil

[2022] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

Maltabes v O’Neil & Anor [2022] QDC 282

PARTIES:

FELICITY CAITLIN MALTABES

(plaintiff)

v
VANESSA LOUISE O’NEIL

(first defendant)

and

CONFETTIWHIP PTY LTD
ACN 651 693 024

(second defendant)

FILE NO/S:

98/22

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

9 December 2022

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

9 December 2022

JUDGE:

Long SC, DCJ

ORDER:

The application will not be decided without an oral hearing.

The application filed 25 November 2022 is adjourned to be further heard on 27 January 2023.

CATCHWORDS:

CIVIL LAW – APPLICATION - Application pursuant to Rule 991(2) of the Uniform Civil Procedure Rules 1999 (Qld) to withdraw as solicitors on the record for the First and Second Defendants.

CIVIL LAW – APPLICATION – HEARING - Whether the application may be heard and decided without an oral hearing.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 140, 490(1) and (2), 491(1), 990(1), (2) and (3), 991(2) and 992(1).

1. The application brought in this matter is that of the solicitors on the record for the first and second defendant, who have jointly filed a notice of intention to defend and defence (and counterclaim of the first defendant) in respect of the claim of the plaintiff, filed on 8 July 2022, for damages for breach of duty, a declaration as to dissolution of a partnership, an order winding up the partnership and directing the taking of accounts including in respect of and the payment of profits obtained by the defendants in operating another business since February 2022.

2. Although the pleadings have closed with the filing of the plaintiff’s reply and answer to counterclaim on 9 September 2022, the matter has not been listed for hearing and nor has any other order been made by the Court.

3. The application, filed 25 November 2022, is expressed to be for the following orders:

   1. That, pursuant to Rule 991(2) of the Uniform Civil Procedure Rules 1999 (Qld) Sajen Legal be granted leave to withdraw as solicitors on the record for the First and Second Defendants.

   2.   That the First and Second Defendants pay the costs of this Application on an indemnity basis.

   3.   Such further or other order as this Honorable (sic) Court deems appropriate.

   It is to be noted that in the notice of intention to defend, filed 16 August 2022, the address for service of the defendants is recorded to be that of the applicant solicitors.

4. The basis for that application, as disclosed in the filed materials, is that the applicant has terminated its client agreement with the defendants due to the failure of those defendants to meet the applicant’s demands for payment of its bills, as required. 

5. Such an application is permitted by rule 990 of the Uniform Civil Procedure Rules 1999 (“UCPR”).  Here the applicant contends that there is compliance with the requirements of UCPR 990(1), in that the necessary written notice of intention to apply for leave to withdraw was given to the defendants, by letter dated and posted to them, on 11 November 2022, and therefore subsequently to the applicant’s letter, emailed to them on 2 November 2022, setting out the breach of the client agreement upon which the termination of the retainer was stated to be effected immediately and with formal demand for the payment of the outstanding debt to the applicant.  There has been no response to any of the applicant’s correspondence and nor has there been any notice filed as to another solicitor acting or that the defendants act in person.

6. Accordingly and on 25 November 2022, the above-mentioned application was filed and directed to the power of the Court, pursuant to UCPR 991(2), to give the solicitor leave to withdraw from the record and make an order for costs. It is to be noted that this application also contains a notification of the applicant’s proposal that it be decided without an oral hearing and that the nominated date for hearing was 9 December 2022.

7. In accordance with UCPR 990(2) there is evidence purporting that the application filed on 25 November 2022 has been served on the clients, by it being emailed on 30 November 2022 to an email address described as “the defendants’ email address” and, more particularly, on the same date by posting it to what is described as the  residential address of the first defendant and also the registered address of the second and corporate defendant.

8. There are, however, some procedural difficulties:

   (a)As required by UCPR 490(1), the notice of proposal for decision without an oral hearing asserted that:

   “an order in terms of the accompanying draft is sought.  The material and submissions in support of the application are provided.”

   The only material filed with the application was the affidavit of Kyle James Kimball and the applicant’s submissions.  There is nothing in the filed material by way of a draft order.  Further, neither is there any evidence of such a document being served by the correspondence sent on 30 November 2022.  In the affidavit of David Jason Peter Atkins, filed 15 December 2022, it is simply asserted that the documents emailed and forwarded, respectively, by post were:

   “(a)    a sealed copy of the application filed in this proceeding on 25 November 2022;

   (b)    a sealed copy of the Kimball affidavit; and

   (c)    a sealed copy of the Applicant’s Submissions.”

   (b)Pursuant to UCPR 490(2) it is provided in respect of an application that “an applicant proposes… be decided without an oral hearing,” that:

   “The registrar must set a date for deciding the application which is at least 10 days after the application is expected to be served on the respondent.”

   As has been noted, after filing this application on 25 November 2022, it was not until 30 November 2022 that the applicant acted to attempt service of it. Leaving aside the reference to the documents being emailed, it would appear that reliance is being placed upon UCPR 990(3) which permits service of such an application “by posting it to the client at the residential or business address last known to the solicitor.” However, the complication is the addition of the notification of proposal as to decision without an oral hearing and an inability to conclude that the setting of 9 December 2022 as the date for hearing and the decision of this application has allowed “at least 10 days after the application is expected to be served on the respondent.” While this obligation is addressed to the registrar, it is otherwise clearly a matter which begs the involvement of the applicant and particularly as to the expectation of service upon the respondent. In any event, that expectation cannot be allowed to be undermined by lack or delay of action on the part of the applicant.

   (c)A further curiosity is that none of the correspondence of the applicant has been directed to the residential or business address for the defendant, recorded in accordance with UCPR 140 on the notice of intention to defend filed by applicant on 16 August 2022. Whilst UCPR 990(3) permits service by postage to “the residential or business address of the client last known to the solicitor”, there is no explanation linking such a consideration to any address to which this application has been posted and there is the difficulty in respect of the second defendant that the address to which material was posted is identified as the registered address, noted as being the address of “Accountancy Services Pty Ltd”.

9. It may be that, in an individual sense, there may be room for relevant excusal of irregularity and abridgment of time. However, no such considerations are addressed in the submissions provided in order to engage the proposal for decision without oral hearing. In fact, there is no submission addressing the requirements of UCPR 990(2) as to service of the application, nor of those of UCPR, in addition, for a decision without oral hearing.

10. In the applicant’s written submissions, it is correctly noted that the relief sought under UCPR 991(2) is discretionary and so is the position as to a decision without oral hearing: see UCPR 491(1). In this instance and having regard to the irregular issues which have been noted, it is inappropriate to proceed without an oral hearing. It may be further observed that, in the context of what has been noted as to the absence of any communication directed by the applicant to the residential or business address recorded for both defendants on their notice of intention to defend and to which the plaintiff would be left to initially resort, as the address for service of the defendant: UCPR 992(1), it may not be entirely clear that, as asserted in the applicant’s written submissions:

    “no prejudice will fall upon the defendants by making the order and there are no facts known to the applicant which would suggest a reason for the court to exercise its discretion against making the orders sought.”

11. Accordingly, the application will not be decided without an oral hearing and will be adjourned to a later appropriate date, so that the applicant may further address the identified issues as to the service of the application and file any further material to be relied upon in that respect. The order is that the application filed 25 November 2022 is adjourned to be further heard on 27 January 2023 at 10:30am.