Neumann Petroleum Terminals Pty Ltd v Tingalpa Petroleum Pty Ltd

Transcript of Proceedings

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DISTRICT COURT [2003] QDC 035 Date: 15 April, 2003
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3682 of 2002

NEUMANN PETROLEUM TERMINALS PTY Plaintiff
LIMITED (ACN 073 931 674)
and
TINGALPA PETROLEUM PTY LTD Defendant
(ACN 081 919 913) TRADING AS
B P TINGALPA (BN7168147)
BRISBANE
..DATE 21/02/2003
ORDER
CATCHWORDS: UCPR - Rule 444 - costs implications of a defect in the notice - letter posted rather than faxed by practitioner and received the next day - letter required a response one day earlier than specified by the rules - substantial compliance with the rule held rather than non- compliance - plaintiff's costs to be its costs in the cause.

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those

21022003 T09/PAF23 M/T CMS33/2003 (Robin DCJ)

HIS HONOUR: All that concerns the Court at the present time 1
is an application for costs by the plaintiff which has been
successful in its pursuit of adequate disclosure by the
defendant to the extent that, by consent, an order is to be

made today requiring the defendant to file and serve "an 10
affidavit of disclosure" within seven days.
It is anticipated that will prove an empty victory in the
sense that the defendant may be indicating on the oath of an
20
appropriate person that it has no documents.
The plaintiff is willing to accept that situation if it is
sworn to, notwithstanding its misgivings, in the light of its
being in possession of commercial documents as listed in its 30
own list of documents, a copy of which the Court has seen.
The costs issue arises because there was a defect in the way
in which the Rule 444 notice, required as a preliminary to 40
this application, was given. By Rule 444(1)(e) a time for
reply to the letter must be indicated which has to be "at
least three business days after the date of the letter". The
letter in question was dated the 4th of February 2003; it was
50
not faxed in accordance with a growing practice among
practitioners, but sent by post, and received the next day in
the office of the defendant's solicitors. It specified the
time for reply as 5 p.m. on the 7th of February 2003.

ORDER

2 60

21032003 T10/PAF23 M/T CMS33/2003 (Robin DCJ)

Ms Gubbins, resisting any order for costs against her client 1
as sought by Ms Pierce, refers to section 38(1)(a) of The Acts
Interpretation Act and submits that the plaintiff was not
entitled to require a response before the 8th of February 2003

in the circumstances. She relies on the Court of Appeal's 10
judgment in Meredith v Palmcam Pty Ltd (2001) 1 QdR 645 where
the Court of Appeal acknowledged the importance of Rule 444
letters.
20
In this case, there has been a genuine attempt to comply with
requirements of Rule 444 which, in substance, I think was
effective, but for the date issue. The application in the
Court was not filed until well after the letter and, in the
circumstances, the non-compliance is in no way comparable with 30
that in Meredith v Palmcam where my understanding is that
there was no letter at all. In my opinion, the plaintiff
ought to have a costs order but contingent on its succeeding
in the action. The order will be that the plaintiff's costs 40
of the application be its costs in the cause.
That order has been added by me to the draft handed up as
paragraph 2 and I will make an order in terms of the
50
initialled draft.

-----

ORDER

3 60

CaseChat Overview and Summary

In the matter of Neumann Petroleum Terminals Pty Ltd versus Tingalpa Petroleum Pty Ltd, the case was heard in the District Court of Queensland. The dispute centred around the defendant's failure to adequately disclose certain documents, leading the plaintiff to seek an order for costs associated with the disclosure application. The plaintiff argued that the defendant's non-compliance with the disclosure requirements warranted costs, and the court was tasked with determining whether the plaintiff's costs should be awarded.

The primary legal issue before the court was whether the plaintiff's costs for the disclosure application should be awarded, despite a procedural defect in the notice provided to the defendant. The defect in question was that the Rule 444 notice, which required a response at least three business days after the date of the letter, was sent by post rather than fax, and was received the next day, specifying a reply time one day earlier than the rules required. The court had to decide whether this procedural error constituted a substantial compliance with the rules, thereby justifying an award of costs to the plaintiff.

The court found that the plaintiff had genuinely attempted to comply with the requirements of Rule 444, despite the defect in the notice. The judge considered that the non-compliance in this case did not reach the level of disregard seen in previous cases, such as Meredith v Palmcam Pty Ltd. Therefore, the court ruled that the plaintiff should be awarded costs contingent upon their success in the action. The judge made an order that the plaintiff's costs for the application would be its costs in the cause, thus allowing the plaintiff to recover its costs from the defendant if it succeeded in the proceedings.

The court's final order was that the plaintiff's costs for the disclosure application would be its costs in the cause, contingent on the plaintiff's success in the proceedings. This decision allowed the plaintiff to seek recovery of its costs if it ultimately prevailed, while also addressing the procedural defect in the notice. The court emphasised that the non-compliance, while present, did not significantly hinder the defendant's ability to respond and thus did not warrant a complete denial of costs to the plaintiff.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

DISTRICT COURT	[2003] QDC 035	Date: 15 April, 2003
CIVIL JURISDICTION JUDGE ROBIN QC
No 3682 of 2002

NEUMANN PETROLEUM TERMINALS PTY	Plaintiff
LIMITED (ACN 073 931 674)
and
TINGALPA PETROLEUM PTY LTD	Defendant
(ACN 081 919 913) TRADING AS B P TINGALPA (BN7168147)
BRISBANE
..DATE 21/02/2003
ORDER

HIS HONOUR: All that concerns the Court at the present time	1
is an application for costs by the plaintiff which has been
successful in its pursuit of adequate disclosure by the
defendant to the extent that, by consent, an order is to be
made today requiring the defendant to file and serve "an	10
affidavit of disclosure" within seven days.
It is anticipated that will prove an empty victory in the
sense that the defendant may be indicating on the oath of an
20
appropriate person that it has no documents.
The plaintiff is willing to accept that situation if it is
sworn to, notwithstanding its misgivings, in the light of its
being in possession of commercial documents as listed in its	30
own list of documents, a copy of which the Court has seen.
The costs issue arises because there was a defect in the way
in which the Rule 444 notice, required as a preliminary to	40
this application, was given. By Rule 444(1)(e) a time for
reply to the letter must be indicated which has to be "at
least three business days after the date of the letter". The
letter in question was dated the 4th of February 2003; it was
50
not faxed in accordance with a growing practice among
practitioners, but sent by post, and received the next day in
the office of the defendant's solicitors. It specified the
time for reply as 5 p.m. on the 7th of February 2003.

Ms Gubbins, resisting any order for costs against her client	1
as sought by Ms Pierce, refers to section 38(1)(a) of The Acts
Interpretation Act and submits that the plaintiff was not
entitled to require a response before the 8th of February 2003
in the circumstances. She relies on the Court of Appeal's	10
judgment in Meredith v Palmcam Pty Ltd (2001) 1 QdR 645 where
the Court of Appeal acknowledged the importance of Rule 444
letters.
20
In this case, there has been a genuine attempt to comply with
requirements of Rule 444 which, in substance, I think was
effective, but for the date issue. The application in the
Court was not filed until well after the letter and, in the
circumstances, the non-compliance is in no way comparable with	30
that in Meredith v Palmcam where my understanding is that
there was no letter at all. In my opinion, the plaintiff
ought to have a costs order but contingent on its succeeding
in the action. The order will be that the plaintiff's costs	40
of the application be its costs in the cause.
That order has been added by me to the draft handed up as
paragraph 2 and I will make an order in terms of the
50
initialled draft.