Chesson v Green

In the matter of Chesson v Green, the plaintiff sought an extension of time to serve the writ on certain defendants, which was out of time and subject to a springing order for striking out. The defendants had filed a motion to strike out the writ due to non-compliance with the springing order. The court had to decide whether to exercise its discretion to extend the time for service of the writ and, if so, on what terms.

The legal issues involved whether the court had the jurisdiction to extend the time for service of the writ and, if it did, how the court should exercise its discretion. The court considered the principles established in FAI General Insurance Co Ltd v Southern Cross Exploration NL, which held that a court has the power to extend the time for doing any act in the proceedings. The court also considered the case of In Re Jokai Tea Holdings Ltd, which held that the court should not be astute to find excuses for non-compliance with its orders but should consider whether the failure was due to extraneous circumstances.

The court found that the plaintiff had not intentionally or contumeliously failed to comply with the springing order. The plaintiff had served three of the defendants within time and had taken steps to serve the remaining defendants. The failure to serve the remaining defendants was due to the process servers not having addresses on the writs, which was an extraneous circumstance. The court exercised its discretion to extend the time for service of the writ and ordered that service be effected within 28 days.

The court ordered that service of the writ be effected on all defendants within 28 days of the date of the judgment. The defendants' motion to strike out was dismissed. The plaintiff was to pay the defendants' costs of the application on the usual basis.