Denwest Nominees Pty Ltd v IRDI - [2003] WADC 168

DENWEST NOMINEES PTY LTD & ORS -v- IRDI [2003] WADC 168

Last Update: 11/08/2003

DENWEST NOMINEES PTY LTD & ORS -v- IRDI [2003] WADC 168
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 168
Case No:	CIV:2326/2000	Heard:	6 DECEMBER 2002
Coram:	COMMISSIONER GILES	Delivered:	06/08/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	15	Judgment Part:	1 of 1
Result:	Application granted
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DENWEST NOMINEES PTY LTD (ACN 056 445 998) MICHAEL JOHN WALKER PAULINE KAY WALKER AGOSTINO IRDI
Catchwords:	Application to set aside renewal of writ Order 12 r 6 Date for commencement of limitation period in contract, tort and equity
Legislation:	Limitation Act 1935, s 27, s 38(1)(c) Rules of the Supreme Court 1971, O 12 r 6
Case References:	Commercial Developments Pty Ltd (t/as as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208 Hawkins v Clayton (1988) 164 CLR 539 Smith & Anor v Town and Country Bank & Ors, unreported; FCt SCt of WA; Library No 970716; 18 December 1997 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Webster v Lampard (1993) 177 CLR 598 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Cartledge v E Jopling & Sons Ltd [1963] AC 758 Cheney & Anor v Duncan (2001) 34 MVR 28 Krawszyk v Graham [1966] SASR 73 Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 2 AC 1 Ramsay v Madgwicks (a firm) [1989] VR 1 Sampson v Zucker, unreported; FCt SCt of NSW; BC9606395; 11 December 1996 Scarcella v Lettice (2000) 51 NSWLR 302 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 Victa Ltd v Johnson (1975) 10 SASR 496 Wilson v Rigg (2002) 36 MVR 451

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : DENWEST NOMINEES PTY LTD & ORS -v- IRDI [2003] WADC 168 CORAM : COMMISSIONER GILES HEARD : 6 DECEMBER 2002 DELIVERED : 6 AUGUST 2003 FILE NO/S : CIV 2326 of 2000 BETWEEN : DENWEST NOMINEES PTY LTD (ACN 056 445 998)

MICHAEL JOHN WALKER

PAULINE KAY WALKER

Plaintiffs

AND

AGOSTINO IRDI

Defendant

Catchwords:

Application to set aside renewal of writ - Order 12 r 6 - Date for commencement of limitation period in contract, tort and equity

Legislation:

Limitation Act 1935, s 27, s 38(1)(c)
Rules of the Supreme Court1971, O 12 r 6

(Page 2)

Result:

Application granted

Representation:

Counsel:

Plaintiffs : Mr K M Penkin

Defendant : Mr S F Popperwell

Solicitors:

Plaintiffs : Kevin Penkin & Associates

Defendant : Pynt & Partners

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

Commercial Developments Pty Ltd (t/as as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208
Hawkins v Clayton (1988) 164 CLR 539
Smith & Anor v Town and Country Bank & Ors, unreported; FCt SCt of WA;…

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: [2003] WADC 168
Decision Date: 6 AUGUST 2003

CaseChat Overview and Summary

The application was brought by Denwest Nominees Pty Ltd against IRDI. The dispute was regarding the renewal of a writ in a legal case. The Federal Court of Australia was the court involved. The court had to decide on an application to set aside the renewal of the writ, specifically under Order 12 rule 6 of the Federal Court Rules. The issue was about when the limitation period for a claim in contract, tort, and equity begins, particularly in the context of a contract that had been extended.

The court examined the timing of the renewal of the writ and the commencement date of the limitation period. The Federal Court determined that the renewal of the writ was not set aside because the application was not filed within the appropriate time frame. The court noted that the limitation period for claims in contract, tort, and equity starts from the date specified in the contract or, if not specified, from the date the cause of action accrues. The court held that the application was not made within the required time, leading to the dismissal of the application to set aside the renewal of the writ.

The court granted the application for the renewal of the writ to stand and dismissed the application to set it aside. This decision was based on the timeliness of the application and the interpretation of the limitation period. The final orders confirmed the dismissal of the application to set aside the renewal of the writ.

Orders

Orders of the court

Application granted

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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