Tidy v Kastaccs Pty Ltd

[2005] QDC 266

[2005] QDC 266

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 640 of 2005

ROBERT COLIN TIDY	Plaintiff
and
KASTACCS PTY LTD (ACN 107 990 447) AS TRUSTEE FOR THE JAMIESON FAMILY TRUST	Defendant

BRISBANE

..DATE 24/08/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 990, r 991 -
e-mail communications to client by solicitors seeking leave to withdraw where other modes had failed, and there was evidence that relevant e-mails had been received.

HIS HONOUR: This is an application by Ffrench Commercial Lawyers under rule 991 of the UCPR for leave to withdraw as the plaintiff's solicitors. It has been argued by Mr Wardrobe as town agent.

There has been some confusion attributable to multiple files, the claim's having been commenced in the Supreme Court.  It comes to the District Court pursuant to a judgment in default of the defendant filing a notice of intention to defend that:

"The defendant pay the plaintiff damages to be assessed upon the plaintiff's statement of claim together with costs to be assessed and that the damages be assessed by the District Court."

That is the ordinary arrangement for assessment of damages.  See Rule 507(3)(a).

The claim relates to the defendant's alleged default in his performance as purchaser under a contract of sale for property for consideration of $2.5 million.  Contractual provisions entitled the vendor to claim various amounts.  Today is a significant day in that it is the date for which the assessment of damages was fixed.

That is not the matter in my list.  In any event, there is no-one here to represent the plaintiff (or the defendant) on such an exercise.

...

HIS HONOUR:  He was not here when called just after 10 o'clock this morning nor when called again just after 11 o'clock when the matter came on again having been stood down to permit retrieval of the District Court file.  What is before the Court is the application of Ffrench Commercial Lawyers.

The solicitors seeking leave to withdraw have complied with the requirements of rule 990 of the UCPR subject to the sufficiency of the mode of communication with the plaintiff client which was use of his e-mail address, [email protected].  Communications were also sent to Mr Tidy's facsimile number by the solicitors.  This occurred against a background of correspondence sent to Mr Tidy's last known physical address being returned by Australia Post marked "return to sender, left address".

While it may be unusual to use e-mail as a means of contact, it must be acknowledged that the forms in the UCPR from form 2 on make provision for parties' e-mail addresses to be stated which contemplates that to some extent at least they may be used as a means of contact. Here the Court has the comfort of being informed that this mode of communication was efficacious.

An affidavit of Rebecca Jane Brooks filed today by leave deposes that she spoke to Mr Tidy yesterday and he confirmed that he had received both of the e-mails addressed to him which are exhibited to other affidavits relied on. 

In the circumstances, there ought be orders in terms of paragraphs 1 and 2 of the application filed on the 22nd of August 2005 on behalf of Ffrench Commercial Lawyers.

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