Neumann Petroleum Terminals Pty Limited v Tingalpa Petroleum Pty Ltd
[2003] QDC 35
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Neumann Petroleum Terminals Pty Limited v Tingalpa Petroleum Pty Ltd[2003] QDC 35
- Add to List
Neumann Petroleum Terminals Pty Limited v Tingalpa Petroleum Pty Ltd[2003] QDC 35
Neumann Petroleum Terminals Pty Limited v Tingalpa Petroleum Pty Ltd[2003] QDC 35
[2003] QDC 035
REVISED COPIES ISSUED
State Reporting Bureau
Date: 15 April, 2003
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3682 of 2002
NEUMANN PETROLEUM TERMINALS PTY LIMITED (ACN 073 931 674) | Plaintiff | |
and | ||
TINGALPA PETROLEUM PTY LTD (ACN 081 919 913) TRADING AS B P TINGALPA (BN7168147) | Defendant |
BRISBANE
DATE 21/02/2003
ORDER
CATCHWORDS: | UCPR - Rule 444 - costs implications of a defect in the notice - letter posted rather than faxed by practitioner and received the next day - letter required a response one day earlier than specified by the rules - substantial compliance with the rule held rather than non-compliance - plaintiff's costs to be its costs in the cause. |
HIS HONOUR: All that concerns the Court at the present time is an application for costs by the plaintiff which has been successful in its pursuit of adequate disclosure by the defendant to the extent that, by consent, an order is to be made today requiring the defendant to file and serve "an affidavit of disclosure" within seven days.
It is anticipated that will prove an empty victory in the sense that the defendant may be indicating on the oath of an appropriate person that it has no documents.
The plaintiff is willing to accept that situation if it is sworn to, notwithstanding its misgivings, in the light of its being in possession of commercial documents as listed in its own list of documents, a copy of which the Court has seen.
The costs issue arises because there was a defect in the way in which the Rule 444 notice, required as a preliminary to this application, was given. By Rule 444(1)(e) a time for reply to the letter must be indicated which has to be "at least three business days after the date of the letter". The letter in question was dated the 4th of February 2003; it was not faxed in accordance with a growing practice among practitioners, but sent by post, and received the next day in the office of the defendant's solicitors. It specified the time for reply as 5 p.m. on the 7th of February 2003.
Ms Gubbins, resisting any order for costs against her client as sought by Ms Pierce, refers to section 38(1)(a) of The Acts Interpretation Act and submits that the plaintiff was not entitled to require a response before the 8th of February 2003 in the circumstances. She relies on the Court of Appeal's judgment in Meredith v Palmcam Pty Ltd (2001) 1 QdR 645 where the Court of Appeal acknowledged the importance of Rule 444 letters.
In this case, there has been a genuine attempt to comply with requirements of Rule 444 which, in substance, I think was effective, but for the date issue. The application in the Court was not filed until well after the letter and, in the circumstances, the non-compliance is in no way comparable with that in Meredith v Palmcam where my understanding is that there was no letter at all. In my opinion, the plaintiff ought to have a costs order but contingent on its succeeding in the action. The order will be that the plaintiff's costs of the application be its costs in the cause.
That order has been added by me to the draft handed up as paragraph 2 and I will make an order in terms of the initialled draft.