Bodycorp Repairers v Maisano

2 The issue before me has arisen by reason of an application made urgently, pursuant to rule 20.03, by Oakley Thompson for leave to cease to act, by reason of not being put in funds. An affidavit was filed and served in support of that application by Mr Broadbent on behalf of Oakley Thompson. That affidavit sets out in some considerable detail the history of Oakley Thompson attempting to have itself put in funds. The affidavit also sets out the continued negotiations that occurred between Oakley Thompson and the first defendant, and others related to the first defendant, in order to put Oakley Thompson into funds for the purposes of conducting the defence of the first defendant.

3 Counsel for the plaintiff referred to Investec Bank (Australia) Limited v. Mann.[1] In my view the facts as set out in Mr Broadbent's affidavit demonstrate that this case is clearly distinguishable from the facts referred to in the decision of Investec Bank v. Mann, at least for 2 reasons. First, in that case the solicitors concerned, Madgwicks, were dilatory in relation to putting the issue of costs before their client for the purpose of being in funds for the trial. The matter was only raised very late. Secondly, the client for whom they acted at the time was out of the jurisdiction. Therefore it was necessary, so his Honour found, for there to be an address for service within the jurisdiction.

4 In my view Oakley Thompson has not been dilatory. Further, the first defendant in this case is within the jurisdiction and readily could have provided an address for service if the application for leave had proceeded. More particularly, the solicitors in filing a notice of ceasing to act, if they had filed one, could have readily provided an address for service. Moreover, in Justice Pagone's decision in Investec Bank v Mann, his Honour said as follows:[2] "It has been held that such applications need not be served upon the other party to the proceedings but only upon the party for whom the solicitors act." Reference was then made to the English decision of Re Creehouse Limited.[3]

5 Prior to the application for leave coming on for hearing, the plaintiff was given notice of the application. The reason that notice was given to the plaintiff was because the court suggested that be done. This was because an order was made on 24 April 2013 requiring security for costs. Those costs were referable to attendance by a solicitor and counsel for the first defendant at trial. The security was ordered to be provided by the plaintiff before trial and, at the time the application for leave was notified, had in fact been provided by the plaintiff. In those circumstances, the court was of the view that it was appropriate that notice be given to the plaintiff.

6 That said, the mere fact that notice was given to the plaintiff did not require it to attend. It was a matter for the plaintiff whether or not it needed to attend. In the circumstances where the application was never made, and therefore the position of the first defendant was not known, I cannot be certain one way or the other as to whether or not leave would have been granted to the plaintiff to be heard if it sought such leave on the application.

7 In the circumstances I propose to make no order as to costs.

[1] [2012] VSC 81.

[3] [1982] 3 All ER 659.