Turner Holdings Qld Pty Ltd v Baggetto Holdings Pty Ltd

[2009] QDC 357

[2009] QDC 357

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1222 of 2006

TURNER HOLDINGS QLD PTY LTD	Plaintiff
and
BAGGETTO HOLDINGS PTY LTD (ACN 050291560)	Defendant

BRISBANE

..DATE 12/10/2009

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 469

Defendant's signature of request for trial date dispensed with - application served on defendant's solicitors as the indicated address for service, although firm had lost contact with the client

HIS HONOUR:  The Court makes orders in terms of paragraphs 1 and 3 of the plaintiff's application filed the 22nd of September 2009, the effect of which is to dispense with signature by the defendant of the request for trial date under rule 469 and to require it to pay the plaintiff's costs of and incidental to the application on the standard basis.

The plaintiff is in the difficult situation of its defendant having disappeared.  It's seeking payment of the price of earthmoving equipment sold to the defendant which the defendant by its pleading, contends was unsuitable for its disclosed intended purpose for use in contracting in the Moranbah area.

The matter proceeded as far as a reply.  The plaintiff has given particulars of its claim as requested.  There has been a change of solicitors, properly recorded on the Court file, on the defendant's side.  The plaintiff has had to give notice of intention to proceed after a delay of a year.  The current solicitors for the defendant are Hynes Harding Lawyers of Annerley who understandably were the entity approached to respond to the request for trial date.

The Court must accept that the plaintiff, having signed it, is ready for the trial.  Hynes Harding have apparently lost contact with their client.  Oddly, they have turned to the plaintiff's lawyers for information as to the last known address of the defendant.  Whatever the source of the information, that is taken to be the defendant company's registered office which is the address Hynes Harding have used in attempts to communicate with the defendant, copies of which have been made available to the plaintiff's solicitors and have been tendered as Exhibit 1.

There's been no appearance for the defendant company when they were called today - unsurprisingly, if the service of the application has been on their solicitors, I suppose Mr Goodwin is correct that while the solicitors' office remains indicated as the address for service, it's not incumbent on him to serve at the registered office or anywhere else. 

It's appropriate for the Court to make the orders, although I'm concerned if the matter proceeds towards trial on an unsatisfactory basis that if contact ever is made then the defendant may well be contesting that the matter is ready for trial.  On the other hand, it's difficult to discern any other way of advancing the proceeding.  It's not a case in which the defendant is in default in a way which might justify judgment being entered against it. 

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