Circuit Finance Pty Ltd v Gardner - [2005] VSC 111

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7871 of 2003

CIRCUIT FINANCE PTY LTD	Plaintiff
V
HELEN RAE GARDNER	Defendant
GEOFFREY JULIAN HERCULES	First Third Party
KEITH ALAN HERCULES	Second Third Party

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JUDGE:	HANSEN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 MAY 2005
DATE OF JUDGMENT:	11 MAY 2005
CASE MAY BE CITED AS:	CIRCUIT FINANCE v GARDNER & ORS
MEDIUM NEUTRAL CITATION:	[2005] VSC 111

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PRACTICE AND PROCEDURE – Magistrates’ Court – Third party notice – Filed but not served – Proceeding transferred to Supreme Court – Second third party took numerous steps in proceeding – Whether third party proceeding a nullity – Whether failure to serve curable – Submission to jurisdiction – Waiver.

COSTS – Application without merit – Solicitor and client basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr A.T. Strahan	Taylor, Splatt & Partners
For the First Third Party	No appearance
For the Second Third Party	Mr M.J. Corrigan	Keith Hercules Solicitors

HIS HONOUR:

This is the hearing of a summons which, by an order of the Listing Master made on 5 May 2005, has been referred to a judge for hearing.

The summons that has been referred is that of Keith Alan Hercules (“the second third party”) filed on 26 April 2005. At the same time Helen Rae Gardner (“the defendant”) has made returnable a summons seeking relief related to that which is the subject of the second third party’s summons.

The case arises in the following context of proceedings. On 13 November 2002, Circuit Finance Pty Ltd (“the plaintiff”) filed a complaint in the Magistrates’ Court against the defendant. The plaintiff claimed a relatively modest amount of $20,000 or so owing in connection with the lease of a horse called Mountain Princess. The defendant filed a third party notice, to which the second third party responded by filing a counterclaim, which, in its full amount, could only be adjudicated in this Court. On the application of the second third party the entire proceeding (that is, the proceeding and the third party proceeding) was transferred to this Court. Subsequently, the Chief Justice remitted to the Magistrates’ Court the proceeding between the plaintiff and the defendant, leaving that between the defendant and the second third party in this Court. The plaintiff and the defendant have settled their proceeding. The third party proceeding is ongoing in this Court. I turn from this overview to the detail of the case.

The second third party’s summons seeks an order, in effect a declaration, that an order for the filing and service of a third party notice made by the Magistrates’ Court at Geelong on 17 July 2003 is and was a nullity as the magistrate had no power or jurisdiction to make it. There is an alternative expression of the application in the summons, and that is that the magistrate had no power to make the order because he could not have…

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.

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Details

Case: [2005] VSC 111
Decision Date: 11 May 2005

CaseChat Overview and Summary

In the matter of Circuit Finance Pty Ltd versus Gardner, the dispute originated in the Magistrates’ Court of Victoria. Circuit Finance, the plaintiff, sought to recover debts owed by the defendant, Gardner. The plaintiff filed a third party notice against a second party, which was not served on that party. The proceedings were subsequently transferred to the Supreme Court of Victoria. The second third party, who had not been served, took several actions in the proceeding, prompting the issue of whether the third party proceeding was a nullity and if the failure to serve could be cured. Additionally, the court examined whether the second third party's actions constituted a submission to the jurisdiction and waiver of the requirement to be served.

The primary legal issues before the court were whether the failure to serve the third party notice rendered the third party proceeding a nullity and whether any subsequent actions by the second third party could cure the defect. The court also considered whether the second third party's participation in the proceeding constituted a submission to the jurisdiction and a waiver of the requirement to be served. The court had to balance the procedural rules regarding third party notices with the principles of fairness and justice in the administration of the law.

The court found that the failure to serve the third party notice did not render the proceeding a nullity. The second third party's active participation in the proceeding, including filing submissions and appearing at a case management conference, constituted a submission to the jurisdiction and a waiver of the requirement to be served. The court concluded that the defect in serving the third party notice was curable, and the proceeding could continue. The court further held that the costs application was without merit and ordered costs on a solicitor and client basis.

The final orders of the court were that the proceeding against the second third party was not a nullity, the failure to serve the third party notice was curable, and the second third party's actions constituted a submission to the jurisdiction and a waiver. The court also ordered the plaintiff to pay the defendant's costs on a solicitor and client basis.

Orders