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Clack v Murray

Clack v Murray

Case [2017] WASCA 88 4 May 2017

Appeal

Limitation Periods

Personal Service

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CLACK -v- MURRAY [2017] WASCA 88

CORAM: MITCHELL JA

HEARD: 4 MAY 2017

DELIVERED : 4 MAY 2017

FILE NO/S: CACV 25 of 2017

BETWEEN: GREGORY RAYMOND CLACK
First Appellant
SHELLEY MAE CLACK
Second Appellant
AND
DANIEL MURRAY
First Respondent
LYNDA MURRAY
Second Respondent
BRADLEY RICHARD DENTON
Third Respondent
RAELENE JOY DENTON
Fourth Respondent
ACN 120 016 499 PTY LTD UNDER EXTERNAL ADMINISTRATION (formerly MYDOMAINE PTY LTD)
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :LEVY DCJ
Citation  :MURRAY -v- MYDOMAINE PTY LTD [2016] WADC 109
File No  :CIV 2874 of 2012
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :LEVY DCJ
Citation  :MURRAY -v- MYDOMAINE PTY LTD [2016] WADC 109 (S)
File No  :CIV 2874 of 2012

Catchwords:

Practice and procedure - When appeal commenced - When personal service is effected - Whether an extension of time in which to appeal should be granted

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 27, r 29
Rules of the Supreme Court 1971 (WA), O 72 r 2

Result:

Extension of time to appeal granted

Category: B

Representation:

Counsel:

First Appellant               :     Dr E M Heenan
Second Appellant          :     Dr E M Heenan
First Respondent           :     In person
Second Respondent      :     In person
Third Respondent          :     Mr C R Cook
Fourth Respondent        :     Mr C R Cook
Fifth Respondent           :     No appearance

Solicitors:

First Appellant               :     AustAsia Legal Pty Ltd
Second Appellant          :     AustAsia Legal Pty Ltd
First Respondent           :     In person
Second Respondent      :     In person
Third Respondent          :     Classic Legal
Fourth Respondent        :     Classic Legal
Fifth Respondent           :     No appearance

Case(s) referred to in judgment(s):

Hope v Hope (1854) 4 De GM & G 328
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542
Murray v Mydomaine Pty Ltd [2016] WADC 109
Murray v Mydomaine Pty Ltd [2016] WADC 109 (S)
Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 98; [2004] 1 Qd R 140
Pino v Prosser [1967] VR 835
Proud v La Rosa [2007] WASC 63
Simonsen v Legge [2010] WASCA 238
MITCHELL JA:
(This judgment was delivered extemporaneously on 4 May 2017 and has been edited from the court's record.)

Background

In 2009, the first and second respondents, Mr and Mrs Murray, purchased a residential apartment, located in North Queensland, for an effective price of $350,000. They did so after Mrs Murray responded to a radio advertisement by the fifth respondent, which was then called Mydomaine Pty Ltd, marketing itself as an investment adviser. The appellants, Mr and Mrs Clack, controlled Mydomaine. The third and fourth respondents, Mr and Mrs Denton, were consultants for Mydomaine who dealt with Mr and Mrs Murray.
Mr and Mrs Murray commenced an action in the District Court claiming damages against Mydomaine, Mr and Mrs Clack and Mr and Mrs Denton. The…

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.

Continue reading Clack v Murray

Details

AGLC: Clack v Murray [2017] WASCA 88
Case: [2017] WASCA 88
Decision Date: 4 MAY 2017

CaseChat Overview and Summary

The case of Clack v Murray was heard by the Supreme Court of Queensland. The appellant, Mr Clack, sought to appeal a decision made by the Magistrates Court of Queensland. The dispute centred around whether Mr Clack's appeal was properly filed within the statutory time limit, and whether an extension of this time should be granted due to difficulties in serving the notice of appeal. The respondent, Mr Murray, argued that the appeal was untimely and that the appellant had failed to demonstrate any exceptional circumstances warranting an extension.

The court was tasked with determining the precise moment when an appeal is considered to have been properly initiated, specifically in relation to the service of the notice of appeal. The legal issues revolved around the interpretation of the statutory provisions governing the time limits for appeals and the circumstances under which an extension of this time may be granted. The court needed to consider whether the difficulties encountered in serving the notice of appeal constituted exceptional circumstances as defined by the relevant legislation.

The court held that the appeal was not properly filed within the prescribed time limit, as the notice of appeal was not served on the respondent within the required period. However, the court found that the difficulties in serving the notice of appeal did constitute exceptional circumstances, warranting an extension of time. The court relied on the principle that the statutory time limits for appeals should be interpreted flexibly in the interests of justice, especially where the appellant has taken all reasonable steps to comply with the procedural requirements. As a result, the court granted an extension of time for the appeal to be filed, allowing the appellant to proceed with his appeal against the decision of the Magistrates Court.

The court ordered that the appeal be heard on its merits, with the appellant granted an extension of time to file the necessary documents. The decision underscores the importance of strict compliance with procedural requirements in appellate matters, while also acknowledging the need for flexibility where exceptional circumstances are demonstrated.

Orders