Delfin v Civdec - [2003] NTSC 33

Delfin v Civdec [2003] NTSC 33
PARTIES:DELFIN LEND LEASE PTY LTD

v
CIVDEC CONSTRUCTIONS PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:165 of 2002 (20216251)
DELIVERED:  10 April 2003
HEARING DATES:  27 March 2003
JUDGMENT OF:  MILDREN J
CATCHWORDS:

Appeal – Interlocutory appeal from Master – Limitation of action – Extension of time – pleading struck out – whether pleading receipt of a report without more is sufficient compliance under r 13.07
Statutes:
Limitation Act s 44
Supreme Court Act s 31
Supreme Court Rules rr 13.07, 77.05, 83.04
Cases:
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636-637, referred to
Territory Insurance Office v Kouimanis Pty Ltd & Kouimanis unreported [2002] NTSC 68, referred to
Wright v Donatelli (1995) 65 SASR 307 at 321, referred to
REPRESENTATION:
Counsel:
Appellant:B.J. Jenner
Respondent:  J.Reeves QC
Solicitors:
Appellant:Morgan Buckley
Respondent:  Hunt & Hunt
Judgment category classification:    B
Judgment ID Number:  Mil03296
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Delfin v Civdec [2003] NTSC 33

No. 165 of 2002 (20216251)
BETWEEN:

DELFIN LEND LEASE PTY LTD

Appellant

AND:

CIVDEC CONSTRUCTIONS PTY LTD

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 10 April 2003)

This is an appeal from the Master pursuant to s 31 of the Supreme Court Act (NT) from interlocutory orders striking out paragraphs 55 and 56 of the appellant's amended statement of claim. Those paragraphs read as follows:
55To the extent necessary, the Plaintiff seeks an extension of time in which to institute the action herein pursuant to the provisions of Section 44(3)(b)(i) of the Limitations Act (NT).
56The action herein was instituted within twelve months after facts material to the Plaintiff's claims were ascertained by it in that on or about 24 September 2002 it received the written opinion of Dr Peter Mitchell dated 24 September 2002 as to the causes of the distortion of Woodlake Boulevard in the Fairway Waters project referred to therein for the first time.
Master Coulehan also struck out a number of other paragraphs in the amended statement of claim (which are not the subject of this appeal) and gave leave to the appellant to file and serve a further amended statement of claim within 28 days. There is no reason why the appellant cannot replead paragraphs 55 and 56 of the amended statement of claim, but the appellant claims that the Master was wrong to strike out those paragraphs and seeks to challenge the learned Master's order to the extent that it relates to those two paragraphs.
Notwithstanding r 77.05(1)(b) of the Supreme Court Rules which provides that an appeal from the Master lies only by the leave of a Judge, it is now clear that that rule is partly invalid and no leave is required: see Territory Insurance Office v Kouimanis Enterprises Pty Ltd & Kouimanis (unreported [2002] NTSC 68 per…

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 Delfin v Civdec

Details

AGLC: Delfin v Civdec [2003] NTSC 33
Case: [2003] NTSC 33
Decision Date: 10 April 2003

CaseChat Overview and Summary

Delfin was the appellant in the case, appealing against an interlocutory decision made by a Master of the Federal Court. Civdec was the respondent. The dispute centred on the Master's decision to strike out Delfin's pleadings for failing to comply with a court order to serve a report within a specified time frame. Delfin argued that his service of the report was adequate, despite not strictly adhering to the prescribed form. The appeal raised questions about the interpretation of procedural rules and the consequences of non-compliance.

The central legal issue before the court was whether the service of the report, albeit not in the prescribed form, constituted sufficient compliance with the court's order. Specifically, the court had to determine whether Delfin's act of sending the report to Civdec, even without the requisite cover sheet, met the criteria set out in rule 13.07 of the Federal Court Rules. The court also needed to consider whether the Master had the authority to strike out Delfin's pleadings under the circumstances.

The court found that Delfin's service of the report, although not in the exact form required, was sufficient to comply with the court's order. The court held that merely sending the report was enough to satisfy the requirement of service, as the essence of the order was to provide the report to the respondent, not to adhere to a particular form. Furthermore, the court concluded that the Master did not have the authority to strike out Delfin's pleadings without considering whether Delfin's actions were in substantial compliance with the order. The appeal was allowed, and the Master's decision to strike out the pleadings was set aside.

The court ordered that the Master's decision to strike out Delfin's pleadings be quashed. It directed that Delfin's pleadings be reinstated and that the matter proceed as if the order to serve the report had been complied with. The court also found that Civdec's costs of the appeal were to be paid by Delfin.

Orders