Nebrean Pty Ltd v Blake[2015] QMC 7

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   This is an application by the plaintiff pursuant to rule 469 Uniform Civil Procedure Rules 1999 (UCPR) seeking an order dispensing with the signature of the second defendant who had failed to sign and return a Request for Trial Date within 21 days of service.

2. [2]
   Rule 469 UCPR^[1] provides:

“469 Dispensing with signature on request for trial date On the application of a party who has signed a request for trial date, the court may dispense with the signature of another party who has been served with the request under rule 467(2) and has not signed and returned it within 21 days after service.”

3. [3]
   The matter was set down for hearing on 23 April 2015. The plaintiff’s material consisted of an affidavit of Craig Thompson, a solicitor, sworn 11 March 2015. No affidavit material was filed on behalf of the second defendant. At the hearing on 23 April 2015 I was advised that the solicitors for the second defendant contacted the plaintiff’s solicitors the day before and said the second defendant was ready for trial and indicated a willingness to sign a Request for Trial Date.  However, the dispute has now descended into one of costs. 

4. [4]
   The plaintiff seeks costs of the application of $579 in accordance with rule 683(2) UCPR^[2] under Schedule 3, Part 2, Item 10 Column G.  The second defendant seeks costs be costs in the cause because of the plaintiff’s non-compliance with rule 444 UCPR.       

5. [5]
   The background is that on 14 July 2014 the plaintiff filed a Claim and Statement of Claim claiming $54,193.62 from the second defendant as monies payable under a guarantee. The claim against the corporate primary debtor is for rent and outgoings payable under a lease for a shop.

6. [6]
   The second defendant filed her Notice of Intention to Defend and Defence on
   8 September 2014.  The plaintiff filed a reply on 14 October 2014.  The parties attended a settlement conference on 21 January 2015.

7. [7]
   By letter dated 13 February 2015 solicitors for the plaintiff sent a letter to the solicitors for the second defendant enclosing a Request for Trial Date for signature and return within 21 days as well as the balance of documents to be disclosed^[3].  The plaintiff had served its list of documents and copies of documents from that list requested by the second defendant.  By letter dated 21 January 2015 the second defendant confirmed that she did not have any documents to disclose at that time.

8. [8]
   As the plaintiff’s solicitors had not received a Request for Trial Date signed by the second defendant within 21 days, the current application was filed 11 March 2015.

9. [9]
   The second defendant submits that costs of the application should be costs in the cause because the plaintiff did not send to her a letter pursuant to rule 444 UCPR. It was submitted that the failure to send that letter before commencing this application constituted a breach of the rules under Chapter 10 part 2 UCPR in accordance with rule 443(c).

10. [10]
    Rule 443 in Part 8 of Chapter 11 UCPR provides^[4]:

“443 Application of pt 8

This part applies to the following applications—

(a) an application for further and better particulars of the

opposite party’s pleading under rule 161;

(b) an application under chapter 10, part 1;

(c) an application under chapter 10, part 2;

(d) any other application relating to a failure to comply with

an order or direction of the court. (emphasis added)”

11. [11]
    Chapter 10 is entitled “Court Supervision”. Part 2 of Chapter 10 is entitled “Failure to comply with rules or order”: r 371 to r 374. Rule 372 provides that on an application for failure to comply with the rules, details of the failure must be set out.

12. [12]
    Rule 444 in Part 8 then provides that before an application of the type in rule 443 is made, a letter must be sent to the proposed respondent setting out various things.

13. [13]
    Meredith v Palmcam Pty Ltd [2000] QCA 113^[5] was cited in support of the second defendant’s submissions.  Upon an application to strike out the plaintiff’s claim the issue was whether or not the damages pleaded in a personal injuries claim complied with rules 150 & 155 UCPR^[6].  The defendants had brought the application without complying with rule 444 UCPR.  While the Court of Appeal at [8] said a court has a discretion to hear an application which does not comply with rule 444 provided good reason was shown, it nevertheless refused the defendants leave to appeal.             

14. [14]
    On the other hand it was submitted for the plaintiff that rule 444 UCPR does not apply to applications under rule 469 UCPR. In August v GJ Glass & Aluminium (Qld) Pty Ltd [2001] QDC 84 the defendant brought an application under rule 667(2)(a) to set aside an order made in the absence of the defendant upon an application by the plaintiff under rule 467(2)^[7].  While successful in the result, the defendant’s submission that the plaintiff’s original application was defective because of non-compliance with rule 444 was rejected.  McGill DCJ at [18] said:

“It was submitted on behalf of the defendant that …the plaintiff’s application was deficient because of the failure to comply with r 444 prior to filing the application.  This is a serious matter where the application is one which falls within r 443: Meredith v Palmcam Pty Ltd [2000] QCA 113.  However, in my opinion, the application which was then before the court was not one which fell within r 443; it was not an application for further and better particulars, it was not an application made under either Part 1 or Part 2 of Chapter 10, nor was it an application relating to a failure to comply with an order or direction of the court.  In my opinion, an application under r 469(4), or for that matter an application under r 467(2) is not an application to which r 444 applies. (Emphasis added)”      

15. [15]
    At the time of that decision rule 469 had five subsections. Rule 469(4) referred to by McGill DCJ provided^[8]:  

“On the application of a party who has signed the request for trial date, the court may dispense with the signature of another party who has been served with the request under subrule (2) and has not returned it within 21 days after service.”

16. [16]
    Rules 467 & 469 were amended by the Uniform Civil Procedure Amendment Rule
    (No. 1) 2010 effective 18 June 2010^[9].  Rule 469(4) became current rule 469 and the other sub rules in then rule 469 were relocated into rule 467.  However, for all intents and purposes, rule 469 remains the same so that the statement by McGill DCJ still applies.   

17. [17]
    The plaintiff referred to BTU Group & Ors v Noble Promotions Pty Ltd [2002] QCA 505^[10] in support of the view expressed by McGill DCJ in August that rule 444 only applies to applications of a specific class expressed in rule 443.  BTU concerned an application under rule 223 UCPR^[11] seeking further disclosure.  In resisting the application and citing Meredith, it was unsuccessfully argued that rule 444 applied because the application was really brought under rule 371 in Chapter 10 part 2 due to an initial failure to comply with the disclosure rules. In referring to Meredith, the court said this at [3] & [4]:

“[3] That decision, however, can be clearly distinguished. There the pleading failed to comply with Rule 155 and the application was clearly based on that failure. In consequence the application there was brought pursuant to Rule 371 and Rule 444 applied.

[4] Here the application is bought pursuant to a specific rule (Rule 223) and it is not necessary to have recourse to Rule 371. It follows that strictly construed Rule 444, which is of limited application, does not apply to it.”

18. [18]
    Another discussion supporting the view that rule 444 only applies to the discrete class of matters in rule 443 is Reynolds v Aluma-Lite Products Pty Ltd [2004] QSC 471.  That was an application by a defendant to strike out parts of a Statement of Claim amended by the plaintiff without leave under rule 378^[12].  At pp 6 & 7 Fryberg J contrasted an application under rule 379^[13] to disallow an amendment entitled to be made without leave of the court under rule 378 to an application to disallow an amendment made without leave but requiring leave under the rules.  In the latter case such an application would be treated as an application under rule 371 in Chapter 10 part 2.  Rule 444 applies to the latter but not the former.

19. [19]
    The current application is made pursuant to a specific rule i.e. rule 469. It does not fall within the class of applications referred to in rule 443. Therefore, rule 444 does not apply. Further, a party may have legitimate reasons for not signing a Request for Trial Date which does not constitute a breach of the rules. I note though that no reasons were advanced in this case.

20. [20]
    The plaintiff further submits that the second defendant has not only failed to respond to the 13 February 2015 letter enclosing the Request for Trial Date, but also has failed to respond to the application served 18 March 2015 until the day before the return date indicating consent to a trial date. Cameron v Booij [2006] QDC 135^[14] was cited in support of the view that costs should be awarded where there is a failure to respond to correspondence.  I also note that no explanation has been given on behalf of the second defendant for failing to return the Request for Trial Date within 21 days.       

21. [21]
    Costs are discretionary. The primary purpose of costs, based on fairness, is to indemnify the successful party. It is not a punishment^[15].  Rule 681 UCPR^[16] provides:

“General rule about costs

(1) Costs of a proceeding, including an application in a

proceeding, are in the discretion of the court but follow the

event, unless the court orders otherwise.”

22. [22]
    In this case, given the above, I order the second defendant pay the plaintiff’s costs of this application in the amount of $579.00.