Nominal Defendant v. Kinnane

[2008] QDC 46

[2008] QDC 46

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RYRIE

No 265 of 2004

NOMINAL DEFENDANT	Applicant
and
KINNANE & ANOR	Respondent

BRISBANE

..DATE 10/03/2008

ORDER

HER HONOUR:  This is an application which has been brought before the Court without an oral hearing in relation to the Nominal Defendant and Kinnane and second defendant Handglen Pty Ltd.

The application is pursuant to rule 990 of the Uniform Civil Procedure Rules where the solicitors currently on the record as solicitors for the first and second defendant in the proceedings seeking to withdraw from the record. The first and second defendant it is also sought, be required to pay costs of and incidental to the application on an indemnity basis.

The application, as I said, was made without the need for an oral hearing. The rule does provide under the Uniform Civil Procedure Rules that if a letter is given in accordance with the rule seven days in advance of their intention to make an application to the Court then they may bring the matter to the Court for the purpose of the Court dealing with it. That letter is annexed to the affidavit of Vincent Anthony Campbell who, in his exhibit, which is not marked but working it out it would appear the letter had been sent - correspondence both October and December 2007 and January 2008 when no instructions had been received by the firm from the relevant defendants.

On 16th January, letters were written and indeed the 8th of January there's dated of 2008 of the intention to make the application to the Court if there was no further contact by the first and second defendant. And the second of 16th of January 2008 the annexure unmarked in respect of the affidavit of Mr Campbell and I should indicate the annexures are unmarked due to an oversight because they are, in fact, referred to in the text of the actual affidavit itself, gave the requisite notice in accordance with the rules pursuant to 990 that the company or either defendant should appoint another solicitor to act or file and serve a notice in accordance with the Uniform Civil Procedure Rules that it was intending to act on its own behalf. Neither had made contact it would appear with the relevant solicitor on the record subsequent to the date of that correspondence and nor can it be seen on the Court file that a notice has been filed by either defendant indicating they intend to act for themselves.

Consequently, I am satisfied on the affidavit of Vincent Anthony Campbell, that the first Order being sought, namely pursuant to rule 990 of the relevant Rules, be granted leave to withdraw from the record as the solicitors for the first defendant and the second defendant in the proceedings. However, I am unable to deal with the second part of the application, namely an Order for Costs on the indemnity basis at this point in light of the fact that I have no affidavit verifying the amount being sought and costs orders can no longer just be made for further assessment at a later date any more under the new costs regime.
Consequently, I shall adjourn this application to some time during the course of the week while I'm in applications to deal with the second order.  However, the first order shall be made based on the material I have.

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