Nebrean Pty Ltd v Blake - [2015] QMC 7

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Nebrean Pty Ltd v Blake [2015] QMC 7

PARTIES:

Nebrean Pty Ltd
(applicant/plaintiff)

v

Margaret Jessie Blake
(respondent/second defendant)

FILE NO/S:

M 191/14

DIVISION:

Magistrates Courts

ORIGINATING COURT:

Toowoomba Magistrates Court

DELIVERED ON:

5 May 2015

DELIVERED AT:

Toowoomba Magistrates Court

HEARING DATE:

23 April 2015

MAGISTRATE:

G Lee

ORDER:

Respondent pay the applicant’s costs fixed at $579.

CATCHWORDS:

Practice – Trial – request for trial date – whether an application for dispensing with the signature pursuant to rule 469 Uniform Civil Procedure Rules 1999 requires a rule 444 letter.

Uniform Civil Procedure Rules 1999, rr 443,444, 469.
Uniform Civil Procedure Amendment Rule (No 1) 2010, s 9 and s 10

August v GJ Glass & Aluminium (Qld) Pty Ltd [2001] QDC 84
BTU Group & Ors v Noble Promotions Pty Ltd & Ors [2002] QCA 505
Cameron v Booij & Ors [2006] QDC 135
Meredith v Palmcam Pty Ltd [2000] QCA 113; [2001] 1 QdR 645

APPEARANCES:

Mr I Dempster (solicitor) Wonderley & Hall Solicitors for the applicant

Mr C Neville (solicitor) Condon Charles Lawyers for the respondent

This is an application by the plaintiff pursuant to rule 469 Uniform Civil Procedure Rules 1999 (UCPR) seeking an order dispensing with the signature of the second defendant who had failed to sign and return a Request for Trial Date within 21 days of service.

Rule 469 UCPR[1] provides:
[1] In Part 2 “Setting Trial Dates” of Chapter 13 “Trials and other hearings”.

“469 Dispensing with signature on request for trial date
On the application of a party who has signed a request for trial
date, the court may dispense with the signature of another
party who has been served with the request under rule 467(2) and
has not signed and returned it within 21 days after service.”

The matter was set down for hearing on 23 April 2015. The plaintiff’s material consisted of an affidavit of Craig Thompson, a solicitor, sworn 11 March 2015. No affidavit material was filed on behalf of the second defendant. At the hearing on

23 April 2015 I was advised that the solicitors for the second defendant contacted the plaintiff’s solicitors the day before and said the second defendant was ready for trial and indicated a willingness to sign a Request for Trial Date. However, the dispute has now descended into one of costs.

The plaintiff seeks costs of the application of $579 in accordance with rule 683(2) UCPR[2] under Schedule 3, Part 2, Item 10 Column G. The second defendant seeks costs be costs in the cause because of the plaintiff’s non-compliance with rule 444 UCPR.

[2] Rule 683 “Costs in proceeding before Magistrates Court”.

The background is that on 14 July 2014 the plaintiff filed a Claim and Statement of Claim claiming $54,193.62 from the second defendant as monies payable under a guarantee. The claim against the corporate primary debtor is for rent and outgoings payable under a lease for a shop.

The second defendant filed her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nebrean Pty Ltd v Blake

Details

AGLC: Nebrean Pty Ltd v Blake [2015] QMC 7
Case: [2015] QMC 7
Decision Date: 5 May 2015

CaseChat Overview and Summary

The case of Nebrean Pty Ltd v Blake involved a dispute between Nebrean Pty Ltd, the applicant, and Blake, the respondent, regarding the setting of a trial date. The matter was heard in the Queensland District Court. The applicant sought an order for the setting of a trial date but had not included a rule 444 letter, which is a prerequisite for such an order. The respondent argued that the absence of the rule 444 letter rendered the application invalid and sought the applicant’s costs.

The primary legal issue before the court was whether an application for dispensing with a signature, pursuant to rule 469 of the Uniform Civil Procedure Rules 1999, required the inclusion of a rule 444 letter. The court needed to determine whether the absence of a rule 444 letter could result in the dismissal of the application and if the applicant's costs should be awarded to the respondent.

In delivering the judgment, the court examined the relevant rules and their interplay. The court found that while rule 469 allows for the dispensing of a signature, it does not necessarily require a rule 444 letter for the application to proceed. The court concluded that the absence of the rule 444 letter did not automatically render the application invalid but could be considered in assessing the merits of the application. The court found that the respondent had not demonstrated any prejudice or substantial injustice resulting from the omission of the rule 444 letter. Consequently, the application was not dismissed, and the court ordered the respondent to pay the applicant's costs, which were fixed at $579.

Orders

Orders of the court

Respondent pay the applicant’s costs fixed at $579.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Nebrean Pty Ltd v Blake [2015] QMC 7
PARTIES:	Nebrean Pty Ltd (applicant/plaintiff) v Margaret Jessie Blake (respondent/second defendant)
FILE NO/S:	M 191/14
DIVISION:	Magistrates Courts
ORIGINATING COURT:	Toowoomba Magistrates Court
DELIVERED ON:	5 May 2015
DELIVERED AT:	Toowoomba Magistrates Court
HEARING DATE:	23 April 2015
MAGISTRATE:	G Lee
ORDER:	Respondent pay the applicant’s costs fixed at $579.
CATCHWORDS:	Practice – Trial – request for trial date – whether an application for dispensing with the signature pursuant to rule 469 Uniform Civil Procedure Rules 1999 requires a rule 444 letter. Uniform Civil Procedure Rules 1999, rr 443,444, 469. Uniform Civil Procedure Amendment Rule (No 1) 2010, s 9 and s 10 August v GJ Glass & Aluminium (Qld) Pty Ltd [2001] QDC 84 BTU Group & Ors v Noble Promotions Pty Ltd & Ors [2002] QCA 505 Cameron v Booij & Ors [2006] QDC 135 Meredith v Palmcam Pty Ltd [2000] QCA 113; [2001] 1 QdR 645
APPEARANCES:	Mr I Dempster (solicitor) Wonderley & Hall Solicitors for the applicant Mr C Neville (solicitor) Condon Charles Lawyers for the respondent