In the matter of Tiaro Coal Limited (in liquidation) (ACN 127 936 412)

In the matter of Tiaro Coal Limited (in liquidation) (ACN 127 936 412), the court was presented with an application concerning the setting aside of an originating process and the service of that process due to non-compliance with a specific rule of the Supreme Court (Corporations) Rules 1999 (NSW). The dispute involved a claim by Tiaro Coal Limited against various defendants, with the central issue being whether the delay in serving the originating process justified the setting aside of the service or the dismissal of the proceedings.

The primary legal issues before the court were whether rule 2.7 of the Supreme Court (Corporations) Rules 1999 (NSW) applied to the exclusion of rule 6.2(4) of the Uniform Civil Procedure Rules 2005 (NSW), and whether the delay in serving the originating process, due to the time taken to secure litigation funding, warranted the exercise of the court's discretion to set aside the service of the originating process. The court also needed to determine whether the appropriate remedy was the setting aside of the service of the originating process or the outright dismissal of the proceedings.

The court found that rule 2.7 of the Supreme Court (Corporations) Rules 1999 (NSW) did not exclude the application of rule 6.2(4) of the Uniform Civil Procedure Rules 2005 (NSW). It further held that the delay in serving the originating process, due to the time taken to secure litigation funding, did not provide sufficient grounds to exercise the court's discretion to set aside the service of the originating process. Consequently, the court determined that the proceedings should not be dismissed but that the service of the originating process should be set aside. The court's decision was based on the recognition that the delay was not attributable to the plaintiff's lack of diligence and that setting aside the service of the originating process would be a proportionate remedy.

The court ordered that the service of the originating process be set aside, allowing the plaintiff an opportunity to serve the process within a specified period, and that the proceedings were not to be dismissed.