(1) Pursuant to rule 12.11 of the Uniform Civil Procedure Rules 2005 (NSW), the orders made on 3 August 2022 extending the time for service of the Statement of Claim and granting the Plaintiff leave to serve the Amended Statement of Claim are discharged.
(2) The order made on 23 September 2022 extending time to serve the Amended Statement of Claim is discharged.
(3) The order made on 6 October 2022 for substituted service of the Amended Statement of Claim is discharged.
(4) The order for service of the Amended Statement of Claim on the Defendant’s solicitors, Mr Douglas Bishop and Ms Bryony Dewar-Leahy on 6 October 2022 is set side.
(5) Both the Statement of Claim filed 1 July 2022 and the Amended Statement of Claim filed 25 August 2022 are struck out and dismissed.
(6) The Plaintiff is to pay the Defendant’s costs of this notice of motion and of the proceedings, with liberty to apply.
Catchwords:
PRACTICE AND PROCEDURE - application to set aside orders extending time for service of statement of claim - delays in service of statement of claim - whether delays in commencing and serving statement of claim adequately explained - no issue of principle
The defendant, by notice of motion filed on 20 October 2022, seeks the following orders:
“Pursuant to rule 12.11 of the Uniform Civil Procedure Rules, that:
1. the order made on 3 August 2022:
(a) extending the time for service of the Statement of Claim; and
(b) granting the Plaintiff leave to serve the Amended Statement of Claim,
be discharged.
2. the order made on 23 September 2022 extending time to serve the Amended Statement of Claim be discharged.
3. the order made on 6…
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
AGLC
Ingram v Ingram [2022] NSWDC 653
Case
[2022] NSWDC 653
Decision Date
CaseChat Overview and Summary
The case of Ingram v Ingram involved a dispute over the validity of orders extending the time for service of a statement of claim. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to enforce orders that extended the time for service of a statement of claim and sought leave to serve an amended statement of claim. The defendant opposed these applications, arguing that the plaintiff had not adequately explained the delays in commencing and serving the statement of claim.
The primary legal issues before the court were whether the delays in commencing and serving the statement of claim were adequately explained and whether the orders extending the time for service should be set aside. The court had to consider the principles governing the extension of time in the Uniform Civil Procedure Rules 2005 (NSW) and the circumstances of the case, particularly the adequacy of the explanations provided by the plaintiff. The court needed to determine if the plaintiff's reasons for the delays were sufficient to warrant the extensions granted and whether the plaintiff had acted with due diligence.
The court found that the plaintiff had not provided an adequate explanation for the delays in commencing and serving the statement of claim. The reasons given were not sufficient to justify the extensions of time. The court noted that there was no issue of principle involved but that the plaintiff's conduct in this matter warranted the setting aside of the orders. Consequently, the court discharged the orders extending the time for service and the orders for substituted service. The statement of claim and the amended statement of claim were struck out and dismissed, and the plaintiff was ordered to pay the defendant's costs of the application and the proceedings, with liberty to apply.
Orders
Orders of the court
(1) Pursuant to rule 12.11 of the Uniform Civil Procedure Rules 2005 (NSW), the orders made on 3 August 2022 extending the time for service of the Statement of Claim and granting the Plaintiff leave to serve the Amended Statement of Claim are discharged.
(2) The order made on 23 September 2022 extending time to serve the Amended Statement of Claim is discharged.
(3) The order made on 6 October 2022 for substituted service of the Amended Statement of Claim is discharged.
(4) The order for service of the Amended Statement of Claim on the Defendant’s solicitors, Mr Douglas Bishop and Ms Bryony Dewar-Leahy on 6 October 2022 is set side.
(5) Both the Statement of Claim filed 1 July 2022 and the Amended Statement of Claim filed 25 August 2022 are struck out and dismissed.
(6) The Plaintiff is to pay the Defendant’s costs of this notice of motion and of the proceedings, with liberty to apply.