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Howard v Power

Howard v Power

Case [2013] VSC 198 23 April 2013

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 5374

STEPHEN JAMES HOWARD	Plaintiff
v
EDWARD POWER	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2013
DATE OF JUDGMENT:	23 April 2013
CASE MAY BE CITED AS:	Howard v Power
MEDIUM NEUTRAL CITATION:	[2013] VSC 198

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PRACTICE AND PROCEDURE – Extending validity of writ – Relevant considerations – Service deferred pending outcome of related proceedings – Claim statute barred as to part - Whether expenses incurred in retaining counsel in related proceedings a ‘good reason’ to extend validity – Disputes as to knowledge of defendant as to the potential for the claim –no knowledge by defendant of issue of the writ until notice pursuant to Court order- no ‘good reason’ established - validity not extended - Supreme Court (General Civil Procedures) Rules 2006 Rule 5.12.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Broadbent	Oakley Thompson & Co
For the Defendant	Dr A. Hanak	Minter Ellison Lawyers

HIS HONOUR:

Introduction

This is a contested application for an order extending the validity of a writ for service.

By generally endorsed writ filed on 10 October 2011 (“Writ”) the plaintiff (“Howard”), a solicitor, claimed against the defendant (“Power”), a barrister, damages for negligent advice. The claim arose from a contract of retainer pursuant to which Howard sought the advice of Power in relation to taxation matters. The retainer was entered into in September 2005 and written advice was given by Power, it is alleged, on 12 October 2005. It is alleged that the advice was relied upon by Howard in organising his affairs and that in breach of his duty to exercise all due care, skill and attention in providing the advice, Power was negligent. The claim is one made both for breach of the contract of retainer and for damages for negligence in tort.

The validity of the writ for service expired on 8 October 2012. By ex parte summons filed on 3 October 2012 Howard applied to extend the validity of the writ for service. That application came before Mukhtar AsJ on 8 October 2012. His Honour ordered that the summons be heard on notice to Power and required that it be served on Power, personally, by 15 November 2012. He noted that the writ had intentionally not been served and that it appeared that the only reason Howard had abstained from serving the writ was that he wished to await the decision of the Full Court of the Federal Court in an appeal by him.

Background facts

The application was supported by a number of affidavits of Howard[1] and affidavits sworn on behalf of Power by his solicitor.[2] The material facts may be summarised as follows:
[1]Affidavits of Stephen James Howard sworn 3 October 2012, and two affidavits of 13 February 2013. Further an affidavit of the plaintiff’s solicitor Jeremy Scott Broadbent sworn 12 February…

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 Howard v Power

Details

AGLC: Howard v Power [2013] VSC 198
Case: [2013] VSC 198
Decision Date: 23 April 2013

CaseChat Overview and Summary

Howard v Power is a case before the court involving a dispute over the extension of the validity of a writ. The plaintiff, Howard, sought to extend the validity of the writ to pursue a claim against the defendant, Power, on the basis that expenses incurred in retaining counsel in related proceedings constituted a 'good reason' for the extension. The dispute arose as part of a larger matter that included issues of whether the claim was statute-barred in part and whether the defendant had knowledge of the potential for the claim. The court was required to determine whether the expenses incurred in the related proceedings constituted a sufficient reason to extend the validity of the writ, and whether the defendant had knowledge of the issue of the writ until notice was given pursuant to a court order.

The legal issues before the court involved interpreting the relevant provisions of the Supreme Court (General Civil Procedures) Rules 2006, specifically Rule 5.12, which outlines the circumstances under which the validity of a writ may be extended. The court needed to assess whether the expenses incurred in retaining counsel in related proceedings constituted a 'good reason' for extending the writ's validity, and whether there was any evidence of the defendant's knowledge of the issue of the writ prior to the notice given pursuant to the court order. The court also had to consider the broader context of the dispute, including the statute-barred nature of part of the claim and the defendant's lack of knowledge about the potential for the claim.

The court found that the expenses incurred in retaining counsel in the related proceedings did not constitute a 'good reason' for extending the writ's validity because the defendant had no knowledge of the issue of the writ until notice was given pursuant to the court order. The court held that there was no evidence to suggest that the defendant was aware of the potential for the claim or the issue of the writ prior to this notice. As a result, the court concluded that no 'good reason' had been established for extending the validity of the writ, and therefore, the writ's validity was not extended. The court's decision was based on the specific circumstances of the case and the interpretation of the relevant provisions of the Supreme Court (General Civil Procedures) Rules 2006.

The court ordered that the validity of the writ was not to be extended, and the plaintiff's claim was statute-barred in part. The court emphasised that the decision was based on the specific facts of the case, including the defendant's lack of knowledge about the potential for the claim and the issue of the writ until notice was given pursuant to the court order. The court's ruling was a careful consideration of the relevant legal principles and the evidence presented in the case.

Orders