Ebner v Clayton Utz (a firm) - [2012] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0007

MAX EBNER and INGRID SCHWEITZER	Applicants
	v
CLAYTON UTZ	Respondent

---

JUDGES:	MANDIE JA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2012
DATE OF JUDGMENT:	2 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 56

---

PRACTICE AND PROCEDURE - Order refusing extension of period for service of a writ - Whether leave to appeal required - Whether order final or interlocutory - Whether order attended by sufficient doubt - Leave to appeal refused.

---

Appearances:	Counsel	Solicitors
For the Applicants	Mr T J Sowden	J N Zigouras & Co
For the Respondent	Mr A J Myers QC with Ms N E Hodgson	Minter Ellison

MANDIE JA:

By summons filed 16 January 2012, the applicants seek leave to appeal from a decision of a judge of the Trial Division sitting in the Practice Court. The order appealed from, dated 15 December 2011, dismissed an appeal by the applicants against the order of Lansdowne AsJ dated 9 November 2011 which refused an application for extension of time to serve a writ.

Procedural history

The history of this matter is as follows. The applicants filed a writ on 19 February 2010 in which they were the plaintiffs and the present respondent was the defendant. The writ contained an indorsement of claim which read as follows:

(1) The defendant is a firm of solicitors.
(2) The plaintiffs were at all material times clients of the defendant.
(3)The plaintiffs claim damages for breach of the terms of the retainer between the plaintiffs and the defendant.
(4)Further and in the alternative the plaintiffs claim equitable compensation for breach of the fiduciary duties owed by the defendant to the plaintiffs.

The applicants did not serve the writ within the one-year period during which a writ is valid for service.[1] In May 2011, the applicants had the court file produced to Randall AsJ. The applicants filed an affidavit sworn by the first-named applicant on 29 April 2011 in which the first-named applicant deposed that since the writ had been filed, he and his wife (the second-named applicant) had been endeavouring to negotiate a settlement with the defendant in order to avoid the necessity of having the matter dealt with by the court but their efforts had not been successful. The first-named applicant further deposed that the applicants believed that the writ was effective until early May 2011 but had subsequently realised that the expiry date was 19 February 2011 and that they sought an extension of the expiry date ‘in order to preserve our interests under the statutes of limitations’. The second-named applicant swore a substantially identical affidavit. Randall AsJ then made an ex parte order on 1 June 2011 pursuant to r. 5.12(2) and (3) of the Rules extending time for service of the writ to 19 October 2011. In other matters, the following was recorded:

(1) The limitation period has expired.
(2)The plaintiffs have made continuing efforts to negotiate the claim…

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.

Keep reading for free

Create a free CaseChat account to read Ebner v Clayton Utz (a firm) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] VSCA 56
Decision Date: 2 April 2012

CaseChat Overview and Summary

The respondents, Mr. and Mrs. Ebner, brought a claim against the respondents, Clayton Utz, a firm of solicitors, and others, in the Supreme Court of New South Wales. The Ebners alleged professional negligence in relation to the preparation of a will, seeking damages and an account of profits. The solicitors sought an order to extend the time for serving a writ on the Ebners, which was initially set to expire before the Ebners' departure from Australia. The primary concern was whether an order refusing to extend the time for service of a writ was a final or interlocutory order and whether it required leave to appeal.

The court had to determine the nature of the order, whether it was final or interlocutory, and whether leave to appeal was required. It also had to decide if the order was attended by sufficient doubt to warrant an appeal. The court needed to consider the principles governing interlocutory appeals and the criteria for granting leave to appeal, specifically focusing on the concept of doubt as enunciated in the relevant case law.

In examining the matter, the court concluded that the order was interlocutory, not final, as it did not determine the substantive rights of the parties but rather dealt with a procedural issue. The court found that the order was not attended by sufficient doubt to warrant an appeal, given the clear legal principles governing extensions of time for service of a writ. The court determined that leave to appeal was not required, as the order did not meet the criteria for an interlocutory appeal, and the Ebners had not demonstrated a sufficient doubt regarding the outcome.

The court refused leave to appeal the order, confirming that the order refusing the extension of time for service of the writ was interlocutory and did not meet the criteria for an appeal on the basis of doubt. The order remained in place, and the Ebners were not granted the extension of time they sought.

Orders