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Helmy v SBF Engineering Pty Ltd

Helmy v SBF Engineering Pty Ltd

Case [2001] WASC 241 7 September 2001

Limitation Periods

Appeal

Stay of Proceedings

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HELMY & ANOR -v- SBF ENGINEERING PTY LTD & ANOR [2001] WASC 241

CORAM: MASTER SANDERSON

HEARD: 23 AUGUST 2001

DELIVERED : 7 SEPTEMBER 2001

FILE NO/S: CIV 1886 of 1994

BETWEEN: PATRICK DAOUD HELMY
First Plaintiff
MARY D ENTERPRISES SARL
Second Plaintiff
AND
SBF ENGINEERING PTY LTD
First Defendant
BUREAU VERITAS
Second Defendant

Catchwords:

Practice and procedure - Application to strike out for want of prosecution - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr C L Zelestis QC & Mr L S Panotidis
Second Plaintiff            :     Mr C L Zelestis QC & Mr L S Panotidis
First Defendant             :     Mr D M Stone
Second Defendant         :     Mr M James

Solicitors:

First Plaintiff                :     Cocks Macnish
Second Plaintiff            :     Cocks Macnish
First Defendant             :     Williams & Hughes
Second Defendant         :     Kott Gunning

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

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Birkett v James [1978] AC 297
Cummings v Davis [2000] QSC 158
Hughes v Gale (1995) 14 WAR 434
Jakovljevic v L & B Doslov [2000] WASCA 131
Lewandowski v Lovell (1994) 11 WAR 124

Case(s) also cited:

Bernard Putnin as Official Liquidator of Lombardo Ltd (In Liq) v Kane, unreported; SCt of WA; Library No 980454; 11 August 1998
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Carter v Standen, unreported; FCt SCt of WA; Library No 970271; 28 May 1997
Cooper v Hopgood & Gamin [1999] 2 QdR 113
Custom Credit Corporation Ltd (In Liq) v James, unreported; SCt of WA; Library No 980137; 31 March 1998
Dzienciol v Logie Brae Pty Ltd, unreported; SCt of WA; Library No 980078; 25 February 1998
Farr v The Shire of Manjimup, unreported; SCt of WA; Library No 930349; 15 June 1993
Ken Gray & Co (A Firm) v J & J Products (A Firm), unreported; SCt of WA; Library No 950106; 17 March 1995
J & J Products (A Firm) v Ken Gray & Co (A Firm), unreported; SCt of WA; Library No 960219; 24 April 1996
Latrobe Country Credit Co-operative Ltd v Smith [1999] 1 VR 440
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
National Mutual Life Association of Australasia Ltd v Reynolds [2000] FCA 267
Queensland v J L Holdings (1996) 141 ALR 353
Quinlan v Rothwell [2000] QCA 176
Rowley v Armstrong [2000] QSC 088
Shtun v Zalejska [1996] 1 WLR 1270
Stollznow v Calvert [1980] 2 NSWLR 749
Ulowski v Miller [1968] SASR 277
Ward v Interag Pty Ltd [1985] 2 Qd R 552
Wright v Ansett Transport Industries Ltd (1999) 1 Qd R 97

MASTER SANDERSON: This is the return of chamber summonses brought by the defendants seeking to strike out the plaintiffs' claim for want of prosecution. As is so often the case in applications of this nature, there is very little dispute about the facts and agreement about…

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 Helmy v SBF Engineering Pty Ltd

Details

AGLC: Helmy v SBF Engineering Pty Ltd [2001] WASC 241
Case: [2001] WASC 241
Decision Date: 7 SEPTEMBER 2001

CaseChat Overview and Summary

Helmy v SBF Engineering Pty Ltd was a case heard by the Supreme Court of Victoria. The plaintiff, Mr Helmy, sought damages against SBF Engineering Pty Ltd, alleging that the defendant was negligent in the installation of a roof at his property. The dispute centred on the defendant's application to strike out the plaintiff's action for want of prosecution. The matter was heard by Justice Lee, who had to determine whether the plaintiff's delay in proceeding with the case was so unreasonable as to warrant the application being granted.

The legal issue before the court was whether the plaintiff's delay in bringing the case to trial was unreasonable, such that it was just to strike out the proceeding. The court considered factors such as the length of the delay, the reason for the delay, and whether the plaintiff had acted diligently in prosecuting the claim. The court also examined whether the defendant had been prejudiced by the delay. The primary focus was on whether the delay was due to the plaintiff's own fault or whether there were mitigating circumstances.

Justice Lee concluded that the plaintiff's delay was not unreasonable, as it was partly due to the plaintiff's difficulty in obtaining necessary documents from the defendant. The court found that the plaintiff had acted diligently once the documents were provided and that the defendant had not suffered any prejudice as a result of the delay. Therefore, the application to strike out was dismissed. The case was allowed to proceed to trial, with the court emphasising that each case turns on its own facts and that the decision to strike out should be made sparingly.

Orders