Choy v Tiaro Coal Ltd (in liq)

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205
Hearing dates: 28 August 2018
Date of orders: 28 August 2018
Decision date: 20 September 2018
Before: Gleeson JA at [1];
Leeming JA at [2];
Payne JA at [83]
Decision:

1. Leave to appeal refused.

 2. Applicants to pay the respondent’s costs.
Catchwords:

CORPORATIONS – service of originating process – service effected almost 6 months after filing – Uniform Civil Procedure Rules r 6.2 provided for service within 6 months – Supreme Court (Corporations) Rules r 2.7 provided for service as soon as practicable after filing and, in any case, at least 5 days before date fixed for hearing – construction of r 2.7 – whether r 2.7 inconsistent with r 6.2 – whether r 2.7 breached – consequences of breach of r 2.7 – power to set aside service of originating process where irregularity

 

PRACTICE – service – application to set aside service of originating process – contravention of obligation to serve as soon as practicable after filing and in any case at least 5 days before date fixed for hearing – liquidators delayed service until litigation funding agreement in place – relevance of compliance with rule requiring service within 6 months – relevance of explanation for delay – relevance of actual and presumptive prejudice – leave to appeal not warranted

STATUTORY CONSTRUCTION – interaction between Supreme Court (Corporations) Rules and Uniform Civil Procedure Rules – significance of rules governing application and inconsistency – consideration of Supreme Court (Corporations) Rules rr 1.3, 2.7 – consideration of Uniform Civil Procedure Rules rr 1.7 and 6.2 – consideration of Civil Procedure Act 2005 (NSW) ss 11 and 63
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 9, 11, 14, 56, 63, Schedule 7
Corporations Act 2001 (Cth), ss 180, 181, 436A
Subordinate Legislation Act 1989 (NSW), ss 3, 10(2), Schedule 4
Supreme Court Act 1970 (NSW), ss 101(2)(e), 124, Schedule 4
Supreme Court (Corporations) Rules 1999 (NSW), rr 1.3, 2.2, 2.3, 2.7
Supreme Court (Judicature) Act 1875 (38 & 39 Vic c 77)
Supreme Court Rules 1970 (NSW), pt 7 r 7
Supreme Court Rules (Amendment No 323) 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.7, 6.2, Schedule 2
Cases Cited: Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Breen v Clough [2018] NSWCA 172
Clune v Watson (1882) Tarl 75
Coles v Ravenshear [1907] 1 KB 1
Ferrand v The Mayor, Aldermen and Burgesses of Bradford (1856) 8 De G M & G 93; 44 ER 324
Harkness v Bell’s Asbestos & Engineering Ltd [1967] 2 QB 729
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47; 118 ACSR 509
House v The King (1936) 55 CLR 499; [1936] HCA 40
In re Pritchard decd [1963] Ch…
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Details
Case
[2018] NSWCA 205
Decision Date

CaseChat Overview and Summary

The applicants, Choy and others, sought leave to appeal a decision of the primary judge concerning the service of an originating process. The respondent, Tiaro Coal Ltd (in liq), had served the originating process almost six months after it was filed. The applicants contended that this service was irregular and should be set aside.

The central legal issues before the Court of Appeal were whether the respondent had complied with the relevant rules of court regarding the timing of service, and if not, what the consequences of any breach should be. Specifically, the court had to consider the interaction between rule 6.2 of the Uniform Civil Procedure Rules, which generally requires service within six months of filing, and rule 2.7 of the Supreme Court (Corporations) Rules, which mandates service "as soon as practicable" after filing and "in any case, at least 5 days before the date fixed for hearing." The applicants argued that the respondent's delay in serving the process, which was attributed to the need to secure litigation funding, constituted a breach of rule 2.7 and that the service should be set aside.

The Court of Appeal held that rule 2.7 of the Supreme Court (Corporations) Rules was not inconsistent with rule 6.2 of the Uniform Civil Procedure Rules. The court found that rule 2.7 imposed a more stringent obligation to serve "as soon as practicable," which the respondent had failed to meet. However, the court also considered the power to set aside service for irregularity under section 63 of the Civil Procedure Act 2005 (NSW). The court reasoned that while there was a breach of rule 2.7, the applicants had not demonstrated actual or presumptive prejudice arising from the delay. The court noted that the six-month period under rule 6.2 had not expired, and that the primary judge had considered the explanation for the delay.

Consequently, leave to appeal was refused, and the applicants were ordered to pay the respondent's costs.

Orders

Orders of the court

1. Leave to appeal refused.

2. Applicants to pay the respondent’s costs.

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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