Schmierer & Anor as Liquidators of Fruitfly Rockhampton Pty Ltd v Advertising Planning and Promotions Pty Ltd
[2006] QDC 263
•12/07/2006
[2006] QDC 263
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1419 of 2005
| TREVOR JOHN SCHMIERER AND JONATHON PAUL McLEOD AS LIQUIDATORS OF FRUITFLY ROCKHAMPTON PTY LTD and FRUITFLY ROCKHAMPTON PTY LTD | First Plaintiff Second Plaintiff |
| and | |
| ADVERTISING PLANNING AND PROMOTIONS PTY LTD ACN 077 545 996 | Defendant |
BRISBANE
..DATE 12/07/2006
ORDER
CATCHWORDS: Uniform Civil Procedures Rules - whether "Rule 444" letter required as preliminary of an application for an order for "general disclosure".
HIS HONOUR: There is an application from the plaintiff's side filed on the 20th of June 2006 seeking removal of Mr Schmierer as one of the first plaintiffs under Rule 69. He was formerly a liquidator and no longer occupies that office. There is no difficulty raised by the defendant in relation to that order being made.
The plaintiff's application also seeks an order that the defendant provide disclosure within 14 days and costs. It is difficult to see why the plaintiffs should be entitled to costs of the Rule 69 aspect of the application. In relation to the other, it seems to me that the plaintiff is entitled to succeed on the merits as there is still no disclosure made by the defendant.
The only difficulty pointed to by Mr Taylor is the asserted failure by the plaintiff to comply with the rules, in particular, Rule 444. It is only by a somewhat circuitous route that Rule 444 which in terms refers to applications under Chapter 10 of the UCPR can be regarded as applying to the present application for what is called "general disclosure," which is made under Chapter 7.
The answer is said by Mr Taylor to be in Rule 371 in which regard, like Rule 374, Rule 372 specifically refers to an "application".
The Court has broad discretions under Rules such as 367 and 371 to excuse non-compliance with the Rules. There has been heated argument between Mr Taylor and Mr McKenzie about whether Rules 443 and 444 even apply, with reference to Seamore v. Watling Roche Lawyers A Firm [2001] QDC 354 (in particular by Mr McKenzie to paragraph [28] in support of his position). It seems to me that in present circumstances it is not particularly to the point to refer to the "very useful purpose of alerting the respondent to the applicant's complaints", to quote the Court of Appeal in Meredith v. Palmcam Proprietary Limited [2001] 1 Queensland Reports 645 at paragraph 8.
The defendant must know perfectly well that it has not made disclosure. Even if of the view that a Rule 444 letter were required, which I do not decide, I would not let the absence of one stand in the way of the plaintiff's obtaining the relief which is sought.
...
HIS HONOUR: On the application already referred to I will make an order in terms of paragraphs 1, 2 and 3 adding to 3 the words "in relation to paragraph 2". There is a cross-application by the defendant for disclosure against the plaintiff, the substance of which has been resolved by the plaintiff's recently providing a list which falls short of being a complete listing of documents; it identifies categories of the huge volume of documents apparently available to the liquidators by reference to folders and the like.
It is only in relation to costs that the defendant's application is pursued. The application has served a useful purpose given what has happened since the filing of it. The Court notes that there was a Rule 444 letter.
The defendant's application filed the 28th of June should be dismissed but the plaintiffs ordered to pay costs of and incidental to the preparation and filing of it.
-----
0