Neumann Petroleum Terminals Pty Ltd v Tingalpa Petroleum Pty Ltd

[2003] QDC 35

Transcript of Proceedings

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State Reporting Bureau

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.

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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
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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
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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

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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.
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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
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initialled draft.

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ORDER

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