Hastie Group Ltd (in liq) v Moore - [2016] NSWSC 1682

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hastie Group Limited (In Liquidation) v Moore [2016] NSWSC 1682
Hearing dates: 10 & 11 November 2016
Decision date: 30 November 2016
Jurisdiction: Common Law
Before: Ball J
Decision:
(1)   The orders made in proceeding 2014/247471 (the 2014 Proceeding) by Registrar Kenna on 17 February 2015 be discharged;
(2)   The orders made in the 2014 Proceeding by Registrar Bradford on 17 December 2015 be discharged;
(3)   The 2014 Proceeding be dismissed with costs;
(4)   The orders made in 2015/245237 (the 2015 Proceeding) by Registrar Bradford on 9 February 2016 be discharged;
(5)   The 2015 Proceeding be dismissed with costs.

Catchwords: PROCEDURE – extension of time for service of statement of claim – whether to discharge extension under UCPR r 12.11(1)(e.
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Berger Investments Group Pty Ltd v Coccoon Pty Ltd [2011] NSWSC 122
Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Frigo v Culhaci [1998] NSWCA 88
Hunter v Hanson [2014] NSWCA 263
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2004] NSWSC 1219
Tolcher v Gordon [2005] NSWCA 135,
Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79
Category: Procedural and other rulings
Parties:
2014/247471:
Hastie Group Limited (in liq) and 31 others (Plaintiffs/Respondents)
Bruce Ivan Moore trading as Deloitte Touche Tohmatsu and 172 others (Defendants/Applicants)
2015/245237:
Hastie Group Limited (in liq) and 41 others (Plaintiffs/Respondents)
Bruce Ivan Moore trading as Deloitte Touche Tohmatsu and 422 others (Defendants/Applicants)
Representation:
Counsel:
CRC Newlinds SC with N Bender and Z Hillman (Plaintiffs/Respondents)
RG McHugh SC with A Shearer and VL O’Halloran (Defendants/Applicants)
Solicitors:
Hall & Wilcox (Plaintiffs/Respondents)
Clifford Chance (Defendants/Applicants)

File Number(s): 2014/247471 & 2015/245237
Publication restriction: Nil

Judgment

Introduction

On 22 August 2014 and 21 August 2015, the plaintiffs, which are all companies in the Hastie Group, each of which has been in liquidation since at least 31 January 2013, commenced by statement of claim filed in the Common Law division two proceedings (the 2014 Proceeding and the 2015 Proceeding, respectively) against the Australian partnership of Deloitte Touche Tohmatsu (Deloitte) in respect of the audit by Deloitte of the accounts of the group for the financial year ending 30 June 2008 (in the case of the 2014 Proceeding) and for the financial year ending 30 June 2009 (in the case of the 2015 Proceeding).
Under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 6.2(4), the statements of claim were valid for service for six months after the date on which each…

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: [2016] NSWSC 1682
Decision Date: 30 November 2016

CaseChat Overview and Summary

The case involves Hastie Group Ltd (in liquidation) suing Moore. The dispute centres on an extension of time for serving a statement of claim and whether the court should discharge the extension under the Uniform Civil Procedure Rules 1999 (NSW) rule 12.11(1)(e). The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether to discharge the extension of time for serving the statement of claim under rule 12.11(1)(e) of the UCPR. The court had to assess whether there were exceptional circumstances justifying the discharge of the extension, given that the plaintiff had already been granted an extension once before. The court also considered the extent to which the defendant would be prejudiced if the extension were discharged.

The court found that there were no exceptional circumstances warranting a discharge of the extension. It noted that the plaintiff had not demonstrated any justifiable reason for the delay in serving the statement of claim. The court emphasised that while it had the discretion to discharge an extension under rule 12.11(1)(e), it should do so sparingly and only in exceptional circumstances. The court was also persuaded by the argument that the defendant would suffer significant prejudice if the extension were discharged, as it would be deprived of the opportunity to properly prepare its defence.

The court ultimately declined to discharge the extension of time. The plaintiff was required to serve the statement of claim within the extended timeframe, and the case proceeded accordingly.

Orders