CHALMERS AND PARTNERS -v- KENSIT [2008] WASCA 122
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 122 | |
| THE COURT OF APPEAL (WA) | 11/06/2008 | ||
| Case No: | CACV:118/2007 | 20 MAY 2008 | |
| Coram: | BUSS JA MURRAY AJA | 20/05/08 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | CHALMERS AND PARTNERS SEAN FRANCIS POPPERWELL RHONDA EILEEN KENSIT ROBYN LEE COUZENS |
Catchwords: | Practice and procedure Stale writ invalid for the purpose of service Test for extending the validity of writ Whether master erred in exercising remedial discretion to grant an extension Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA) O 2 r 1, O 7 r 1 Supreme Court Act 1935 (WA) s 60(1)(f) |
Case References: | Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561 BP Australia Ltd v Westernfield Tanker SA (Unreported, WASC, Library No 6325, 13 June 1986) Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Coyne v Sun Securities Ltd (1992) 8 WAR 218 House v The King (1936) 55 CLR 499 Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597 Ramsay v Madgwicks [1989] VR 1 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHALMERS AND PARTNERS -v- KENSIT [2008] WASCA 122 CORAM : BUSS JA
- MURRAY AJA
- First Appellant
SEAN FRANCIS POPPERWELL
Second Appellant
AND
RHONDA EILEEN KENSIT
First Respondent
ROBYN LEE COUZENS
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : KENSIT & ANOR -v- POPPERWELL & ORS [2007] WASC 163
File No : CIV 1582 of 2005
Catchwords:
Practice and procedure - Stale writ invalid for the purpose of service - Test for extending the validity of writ - Whether master erred in exercising remedial discretion to grant an extension - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 2 r 1, O 7 r 1
Supreme Court Act 1935 (WA) s 60(1)(f)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
First Appellant : Mr J A Thomson
Second Appellant : Mr J A Thomson
First Respondent : Mr R J L McCormack
Second Respondent : Mr R J L McCormack
Solicitors:
First Appellant : Jackson McDonald
Second Appellant : Jackson McDonald
First Respondent : Eastwood Law
Second Respondent : Eastwood Law
Case(s) referred to in judgment(s):
Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561
BP Australia Ltd v Westernfield Tanker SA (Unreported, WASC, Library No 6325, 13 June 1986)
Brealey v Board of Management Royal Perth Hospital…
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CaseChat Overview and Summary
In Chalmers and Partners v Kensit, the dispute arose between the plaintiff, Chalmers and Partners, and the defendant, Kensit. The matter was before the High Court of Australia, which was tasked with addressing an appeal regarding the service of a writ and the extension of its validity. The central issue was whether the master of the court had correctly exercised his discretion to extend the validity of a writ that had become stale, and whether such a decision should turn on its own specific facts.
The court was required to determine the appropriate test for extending the validity of a writ and whether the master had erred in exercising his remedial discretion. This involved examining the circumstances under which a writ might be deemed stale and the criteria that should guide the master's decision to grant an extension. The case hinged on the interpretation of relevant statutes and case law concerning the procedural rules governing the extension of writs.
The court found that the master had indeed exercised his discretion correctly, emphasizing that the decision to extend the validity of a writ should indeed be made on the specific facts of each case. The court concluded that the master had not erred in his assessment and that the extension was appropriately granted in light of the unique circumstances presented. The appeal was subsequently allowed, and the decision of the lower court was set aside. The final orders included the granting of leave to appeal and the allowance of the appeal itself.
The court was required to determine the appropriate test for extending the validity of a writ and whether the master had erred in exercising his remedial discretion. This involved examining the circumstances under which a writ might be deemed stale and the criteria that should guide the master's decision to grant an extension. The case hinged on the interpretation of relevant statutes and case law concerning the procedural rules governing the extension of writs.
The court found that the master had indeed exercised his discretion correctly, emphasizing that the decision to extend the validity of a writ should indeed be made on the specific facts of each case. The court concluded that the master had not erred in his assessment and that the extension was appropriately granted in light of the unique circumstances presented. The appeal was subsequently allowed, and the decision of the lower court was set aside. The final orders included the granting of leave to appeal and the allowance of the appeal itself.
Orders
Orders of the court
Leave to appeal granted
Appeal allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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