Neil Investment Holdings Pty Ltd v Anita Brown

[2010] QDC 516

[2010] QDC 516

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2657 of 2009

NEIL INVESTMENT HOLDINGS PTY LTD (ACN 090 254 505)	Plaintiff
and
ANITA BROWN AND OTHERS	Defendants

BRISBANE

..DATE 30/11/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 17, r 140, r 990

Where defendants' solicitors are given leave to withdraw - directions given as to addresses of which document may be served on them pending their filing some new convenient address for service.

HIS HONOUR:  Before the court is the plaintiff's application for disclosure of documents referred to in the defendants’ pleading which have not been properly disclosed. 

There's also an application by Piper Alderman, the defendants’ solicitors on the record, who have been pursuing the steps required under Rule 990 and following rules to permit them to withdraw since July, for leave to withdraw.  The applicant's solicitors have, it seems, complied with what the rules require and there's no opposition by the defendants to leave to withdraw being granted, the defendants have not complied with their solicitor's request (indeed, what seems to me, to be probably their undertaking) to provide a signed notice of now acting in person, with a suitable address for service.

Ms Vicencio has been able to place before the court a copy of a document appearing to be signed on behalf of all four defendants, which, of course, is not in a form which her firm can file in court.  So they remain stuck as solicitors on the record and the defendants' address for service.

My practice in these circumstances is to ensure that a plaintiff with the advantage of a useable address for service doesn't lose that by reason of solicitors on the record going out of the picture.  An address for service which the plaintiff can use ought to be stipulated.  That's easier said than done in this case, given that the addresses the defendants have nominated are addresses in Las Vegas, Nevada, USA.  My understanding is that defendants are required to have a local address for service.  Rule 140 requires, in respect of notices of intention to defend, compliance with Rule 17 which of course sets out what's required of a plaintiff.  Rule 140 applies in the case of defendants.

I don't think it's right to leave the plaintiff in a situation of having to serve at an address in the United States.  What can be done in the interim, and has been done by the draft order which I've initialled, is to nominate the registered office of the third defendant company which happens to be in Western Australia, as the address at which the plaintiff may serve documents until some local address for service is supplied. 

The fourth defendant company has its own registered office which happens to be in Queensland.  Use of that may be ill advised.  Mr Mayo, the plaintiff's solicitor, says that he has had difficulty trying to dissuade ASIC from striking off the fourth defendant: its registered office as a usable address for service may disappear at any time.

His application for disclosure is, at his request, adjourned to the 14th of December 2010 with costs reserved.  His ability to proceed then will be enhanced by the court’s recording
Ms Vincencio's undertaking, which she's willing to offer anyway, to inform her clients of the adjournment of the plaintiff's application until that day.

Mr Mayo is in a position to make e-mail and perhaps other electronic contacts with the defendants and has told the court, indeed, that there are without prejudice negotiations going on with the defendants at the moment.  If they don't bear fruit, his client may will find the proceeding a difficult one to advance.

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