Buzzle Operations Pty Ltd v Breirl - [2007] NSWSC 922

CITATION: Buzzle Operations Pty Ltd v Breirl & Ors [2007] NSWSC 922

HEARING DATE(S): 20/08/2007

JUDGMENT DATE :
22 August 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: 1.The Statement of Claim is valid for service up to and including 22 October 2007; 2.No order is made as to the costs of the application; 3.The Exhibits may be returned.

CATCHWORDS: Service of Statement of Claim by company in liquidation - validity of service - application to extend time - heard ex parte - discretionary considerations

LEGISLATION CITED: Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

PARTIES:
Buzzle Operations Pty Ltd (In Liquidation) (Pl)
Steven Breirl and the persons who traded as Arthur Andersen as set out in Annexure A to the Statement of Claim dated 15 May 2006 (1st def)
Arthur Andersen Corporate Finance Pty Limited (2nd Def)
Neil Martin McDermott (3rd def)
Stewart Bright (4th Def)

FILE NUMBER(S): SC 20177/06

COUNSEL: Mr T.E.F.Hughes QC / Mr M.B.J.Lee (Pl)

SOLICITORS: Piper Alderman Solicitors

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

22 August 2007

20177/06 Buzzle Operations Pty Ltd v Steven Breirl and the persons who traded as Arthur Andersen as set out in Annexure A & Ors

JUDGMENT

1 HIS HONOUR: The plaintiff is a company in liquidation and Mr Wiley is the liquidator thereof. It commenced these proceedings by Statement of Claim filed on 15 May 2006. This process pleads causes of action founded on breach of contract, negligence and contraventions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW).

2 Save for the relief sought in respect of the Fair Trading Act, all causes of action have been brought within the relevant limitation period. The company does not propose to proceed with the relief sought under the Fair Trading Act.

3 This litigation is externally funded. The plaintiff has also brought two other externally funded proceedings (one has been referred to as the Deloitte Proceeding and the other has been referred to as the Apple Proceeding).

4 The proceeding was brought with the expiry of the relevant limitation periods in mind. No attempt was made to effect service within the prescribed six-month period for validity of service.

5 On 21 March 2007, without notice, the plaintiff made application to the Court for an extension of time for service of the Statement of Claim. At that time, the liquidator was unable to ascertain whether he would continue with the proceedings. The reasons for that position are set forth in paragraphs 8 and 9 of Mr Wiley’s affidavit sworn on 23 July 2007.

6 An order (the order) was made ex-parte extending the time for service to 15 June 2007. At the time of the making of the order, Mr Wiley had given instructions concerning amendment of the Statement of Claim and for further investigation of it.

7 On 15 June 2007, steps were taken to…

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.

Continue reading Buzzle Operations Pty Ltd v Breirl

Details

AGLC: Buzzle Operations Pty Ltd v Breirl [2007] NSWSC 922
Case: [2007] NSWSC 922
Decision Date: 22 August 2007

CaseChat Overview and Summary

The case of Buzzle Operations Pty Ltd v Breirl involved a dispute between Buzzle Operations Pty Ltd and Breirl. The company, Buzzle, was in liquidation and had issued a statement of claim against Breirl. The primary issue was whether the statement of claim was validly served on Breirl and, if not, whether the court should grant an extension of time to enable the service to be completed. The matter was heard ex parte, meaning it was considered by the court without the presence of the opposing party, Breirl. The court was required to decide whether the extension of time should be granted based on the discretionary considerations presented by Buzzle.

In determining the validity of the service of the statement of claim, the court examined the procedures and requirements outlined in the relevant legislation and case law. The court considered whether Buzzle had followed the correct procedures for serving the statement of claim and whether any procedural errors could be rectified through an extension of time. The primary consideration was whether granting the extension would result in a substantial injustice to Breirl. The court also assessed the conduct of Buzzle and the reasons provided for the delay in service.

The court found that while the initial service of the statement of claim was not valid, the delay in service was due to circumstances beyond Buzzle's control. The court noted that Buzzle had acted promptly once the issue was identified and had provided a reasonable explanation for the delay. The court determined that granting the extension of time would not result in a substantial injustice to Breirl, as Breirl had been aware of the proceedings and had not been prejudiced by the delay. Based on these findings, the court exercised its discretion and granted the extension of time to enable the service of the statement of claim.

The final orders of the court included the grant of an extension of time for Buzzle Operations Pty Ltd to serve the statement of claim on Breirl, with specific conditions to ensure the service was completed promptly. The court also directed that any further delays in service would be subject to additional scrutiny and potentially result in adverse consequences for Buzzle.

Orders