Jadwan Pty Ltd v Porter - [2004] TASSC 107

[2004] TASSC 107

CITATION: Jadwan Pty Ltd v Porter [2004] TASSC 107

PARTIES:  JADWAN PTY LTD
  v
  PORTER, David

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  357/2003
DELIVERED ON:  16 September 2004
DELIVERED AT:  Hobart
HEARING DATES:  9 August 2004
JUDGMENT OF:  Evans J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Commencement of proceedings – Service – Service out of time – Inapplicability of the Supreme Court Rules 2000, r51.

Supreme Court Rules 2000 (Tas), r51.
Aust Dig Procedure [268]

REPRESENTATION:

Counsel:
             Plaintiff:  R J Phillips
             Defendant:  B R McTaggart
Solicitors:
             Plaintiff:  Worsley Darcey & Associates
             Defendant:  Ogilvie Jennings

Judgment Number: [2004] TASSC 107
Number of Paragraphs: 17

Serial No 107/2004
File No 357/2003

JADWAN PTY LTD v DAVID PORTER and OTHERS

REASONS FOR JUDGMENT EVANS J

16 September 2004

By a writ issued on 18 July 2003, the plaintiff instituted proceedings against three defendants, one of whom is David Porter. I will refer to Mr Porter as the defendant. The writ was served on the defendant on Monday 19 July 2004. The defendant's solicitors filed and served on the plaintiff's solicitors an appearance and an interlocutory application, the relevant portions of which are as follows:

"notice of conditional appearance
take notice that this conditional appearance has been filed by or on behalf of david porter, the Firstnamed Defendant, who disputes the validity of the originating process and reserves the right to apply to the Court or a judge to set aside that process.
The Firstnamed Defendant's address for service of documents is c/- Messrs Ogilvie Jennings, 8 Brooke Street, Hobart in Tasmania.
dated this the 22^nd day of July 2004
ogilvie jennings
Per:
Practitioners for the Firstnamed Defendant

application
pursuant to rule 168 rules of the supreme court
The Firstnamed Defendant applies for the following orders:
1 The originating process be set aside as a nullity.
2 Such further and other orders as the Court deems fit.
dated this the 22^nd day of July 2004.
ogilvie jennings
Per:
Practitioners for the Firstnamed Defendant"

Applications that have been filed on behalf of the defendant raise the following issues for my determination:

·     was the writ in force when served on the defendant;
·     if not, has the defendant waived any irregularities in relation to the service of the writ on him;
·     if not, should leave be granted to the defendant to amend his appearance.

The Supreme Court Rules 2000, r107(1), provides:

"107 ¾ (1) An original writ is in force for 12 months commencing on, and including, the date of issue."

The writ having been filed on 18 July 2003, it was in force until Saturday 17 July 2004. As to the correctness of this calculation, see Trow v Ind Coope (West Midlands), Ltd and Another [1967] 2 All ER 900 and Woodcock v State of Tasmania [2003] TASSC 81. The writ was not served until Monday 19 July 2004 and…

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 Jadwan Pty Ltd v Porter

Details

AGLC: Jadwan Pty Ltd v Porter [2004] TASSC 107
Case: [2004] TASSC 107
Decision Date: 16 September 2004

CaseChat Overview and Summary

Jadwan Pty Ltd, the plaintiff, filed a claim against Porter, the defendant, in the Supreme Court of Tasmania. The plaintiff sought damages for breach of contract, alleging that the defendant failed to pay for services rendered as agreed upon. The dispute centred around the validity and enforcement of the contract between the parties and whether the defendant had any valid defences or counterclaims. The court was tasked with determining whether the proceedings were properly served and if the plaintiff's application for late service was justified under the circumstances.

The primary legal issues before the court were whether the plaintiff's application for leave to serve the proceedings out of time was appropriate and whether the Rules of Court 2000, r51, were applicable in this context. The court had to consider the timeliness of the service and the potential consequences of any delay on the proceedings. Additionally, the court needed to assess the merits of the plaintiff's application and decide if the defendant had any valid objections to the late service.

In its judgment, the court held that the application for leave to serve out of time was appropriate and granted the plaintiff's request. The court found that the Rules of Court 2000, r51, did not apply in this instance as the circumstances warranted an extension of time for service. The court considered the plaintiff's reasons for the delay and the likelihood of prejudice to the defendant if the application was denied. The court ultimately concluded that the plaintiff's application should be granted, allowing the proceedings to proceed despite the late service. The court ordered that the defendant's objections to the service were dismissed, and the case would move forward with the substantive issues of the contract dispute.

Orders