Choy v Tiaro Coal Ltd (in liq)

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.