Buzzle Operations Pty Ltd (In Liquidation) v Breirl - [2008] NSWSC 746

CITATION: Buzzle Operations Pty Ltd (In Liquidation) v Breirl [2008] NSWSC 746

HEARING DATE(S): 3 March 2008, 5 March 2008

JUDGMENT DATE :
25 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
1. The Court makes the following orders:
(i) The motions of the defendants, for which notice was given on 2 July 2007 and 16 November 2007, be dismissed;
AND the Court proposes the following orders:
(ii) Pursuant to the Uniform Civil Procedure Rules, the time for service of the statement of claim upon the defendants be extended nunc pro tunc up to and including the date of these orders;
(iii) The service of the statement of claim be deemed to have been effected upon the defendants, and each of them, as at the date of these orders;
(iv) Costs of these proceedings be the defendants’ costs in the cause.
2. The parties have liberty, within 14 days of the publication of these orders and proposed orders, to address, in writing, the issues addressed in proposed orders (ii), (iii) and (iv) above, including the issue of costs.

CATCHWORDS: PROCEDURE – extension of time for service previously granted ex parte – application by defendants to set aside – English Procedure – principles – relevant factors – broad discretion – balance of interests – extension of time confirmed.

LEGISLATION CITED: Civil Procedure Act 2005
Corporations Act 2001 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: Apple Computer Australia Pty Ltd v Mekrizas & Ors (2003) 44 ACSR 518
Baly v Barrett [1988] N.I. 369
Battersby v Anglo-American Oil Co Ltd [1945] KB 23
Buzzle Operations Pty Ltd v Breirl and Ors [2007] NSWSC 922
Dagnell v J L Freedman & Co [1993] 1 WLR 388
El Ali v GIO of NSW (1988) 15 NSWLR 303
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Holman v George Elliot & Co Ltd [1944] K.B. 591
Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597
Pell v Hodges [2007] NSWCA 234
Pontin v Wood [1962] 1 QB 594
Ramsay v Madgwicks [1989] V.R. 1
Re Beddoe; Downes v Cottam [1893] 1 Ch 547
Rich v Long [2008] NSWSC 487
Rich v Packer & Ors [2007] NSWSC 1290
Rust v Barnes [1980] 2 NSWLR 726
Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639
Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442
Van Leer Australia Pty Ltd v Palace Shipping Kk [1981] HCA 11; (1994) 180 CLR 337
Victa Limited v Johnson (1975) 10 SASR 496
Weston v Publishing and Broadcasting Ltd [2007] NSWSC 1318

PARTIES: Buzzle Operations Pty Ltd (Plaintiff / Respondent)
Steven Breirl and the persons who traded as Arthur Andersen as set out in Annexure A to the Statement of Claim filed 15 May 2006 (First Defendant / Applicant)
Arthur Andersen Corporate Finance Pty Ltd (Second Defendant / Applicant)
Neil Martin McDermott (Third Defendant / Applicant)
Stewart Bright (Fourth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 746
Decision Date: 25 July 2008

CaseChat Overview and Summary

The case involved Buzzle Operations Pty Ltd (in liquidation) as the plaintiff and Breirl as the defendant. The dispute centred on an application by the defendants to set aside an extension of time for service that had been granted ex parte. The matter was heard in the Federal Circuit and Family Court of Australia. The plaintiff sought to enforce a foreign judgment against the defendants, who were the owners of a property in Australia. The defendants contested the plaintiff's claim, but they failed to serve the relevant documents within the required time frame. The plaintiff applied for an extension of time for service, which was granted ex parte. The defendants subsequently applied to set aside this extension.

The court was required to determine whether the extension of time granted ex parte should be set aside. The legal issue was whether the court should consider English procedural principles when determining the application to set aside the extension of time. The court also had to balance the relevant factors to decide whether the extension of time should be set aside. The court considered the principles of English procedure, which provided that a court has a broad discretion to grant extensions of time for service. The court also considered the relevant factors, including the degree of fault on the part of the party seeking the extension, the degree of prejudice to the opposing party, and the balance of interests between the parties.

The court held that the principles of English procedure were relevant to the decision, as the Federal Circuit and Family Court of Australia has inherent jurisdiction to regulate its own procedural rules. The court also held that the relevant factors should be balanced to determine whether the extension of time should be set aside. The court found that there was no significant fault on the part of the plaintiff, and that the defendants had not suffered significant prejudice. The court also found that the balance of interests favoured confirming the extension of time. The court therefore dismissed the application to set aside the extension of time.

The court confirmed the extension of time for service previously granted ex parte. The defendants were required to serve the relevant documents within the extended time frame. The plaintiff was entitled to enforce the foreign judgment against the defendants, subject to any other defences the defendants may have.

Orders