Spira & Westley Nominees Pty Ltd v Cort

[2006] QDC 134

[2006] QDC 134

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3569 of 2004

PAUL JOEL SPIRA and
WESTLEY NOMINEES PTY LTD
(ABN 356 0038 0633)

Plaintiffs

and

PETER LESLIE CORT

and

DIANE MORLENE CORT

First Defendant

Second Defendant

BRISBANE

..DATE 27/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules, r 986, r 990 - application by defendants' solicitors for leave to withdraw heard only 19 days before trial - concern that plaintiffs should not lose the advantage of a usable address for service - order made subject to plaintiffs' entitlement to serve the solicitors if an address unofficially indicated to them should prove unavailing, until filing of a new address for service.

HIS HONOUR:  This is an application by solicitors for the defendants who seek leave to withdraw under rule 990 in circumstances where the matter has been set down for hearing from the 15th to 18th of May 2006.  The defendants have failed to make suitable arrangements with the applicant firm to recover costs or, indeed, to acquit costs already accrued.

The requisite steps have been taken by the applicant firm.  The Court, however, still has a concern for the plaintiffs who may be severely embarrassed by the sudden loss of a usable address for service at this important stage of their proceeding.

The applicant firm have written in awareness of the concern the Court would very likely have, advising the plaintiffs' solicitors that "the defendants' new address for service will be 681 The Esplanade, Lota, Queensland, 4179".  However, there has been no filing and service of a notice under rule 986.

The Court is told by Mr Gopal, who has argued the application, that the defendant, Mr Cort, indicated to the firm's deponent, Mr Young, that that address should be used rather than the defendant's business address, no longer the one appearing in the notice of intention to defend.  It is an address apparently known to the applicant firm but which they are not prepared to disclose.

Mr Gopal offers the Court some assurance by information, which does not appear in any affidavit, that by the use of the details supplied by Mr Young the plaintiffs' solicitors are actually in contact with the defendants in person.  If that is correct, then the Court is being unduly careful about the plaintiffs' interests in the order which I propose to make for their protection.  It would be quite wrong to be critical of the applicant firm in the circumstances.

Those episodes provide another illustration of the common problem of solicitors on the defence side having little option but to withdraw, but being met with non-cooperation, of the kind the rules envisage, from the clients from whom they are separating.

It may be that some thought could be given to amending the rules so that solicitors in this situation are entitled to attend to the identification of (and the formal filing and service of notice of) a new address for service on their clients.  It is obviously totally unsatisfactory for the other party in the litigation to suddenly have to scour the jurisdiction or places further afield to effect service.

There will be orders as per paragraphs 1 and 2 of the application which provide for them to withdraw, excusing the solicitors from having to act further, and give them their costs.

There will also be an order, number 3, that in the event of the plaintiffs being unable to effect service on the defendants at the address of 681 The Esplanade, Lota, Queensland, 4179 as advised by the applicant firm, documents in the proceeding may be served on the defendants at the office of Winchester Young Maddern unless and until a proper address for service of the defendants is filed and served.

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